{ "id": 11269762, "name": "D. S. DAVIS v. A. J. STEPHENSON", "name_abbreviation": "Davis v. Stephenson", "decision_date": "1908-11-19", "docket_number": "", "first_page": "113", "last_page": "116", "citations": [ { "type": "official", "cite": "149 N.C. 113" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "92 N. C., 617", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "25 N. C., 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693363 ], "opinion_index": 0, "case_paths": [ "/nc/25/0374-01" ] }, { "cite": "10 Wall., 129", "category": "reporters:scotus_early", "reporter": "Wall.,", "case_ids": [ 3436323 ], "opinion_index": 0, "case_paths": [ "/us/77/0129-01" ] }, { "cite": "44 N. C., 297", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "74 N. C., 782", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 376, "char_count": 7082, "ocr_confidence": 0.417, "pagerank": { "raw": 1.6930738828287028e-07, "percentile": 0.6996015983943465 }, "sha256": "d7084d0c85742560d53a80c54b2f94ba891660ea495546dd8f88fa62c6fbc5d1", "simhash": "1:9622d51399e2ad74", "word_count": 1258 }, "last_updated": "2023-07-14T21:20:43.519867+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "D. S. DAVIS v. A. J. STEPHENSON." ], "opinions": [ { "text": "Wauker, J.,\nafter stating the case: There ivas evidence in support of the contentions of the respective parties. The plaintiff contended, during the course, of the trial, that the account for $128.59 had been rendered to the defendant, that he kept it a reasonable time and failed to object to it, and it thereby became an account stated, and he now complains and excepts because the Court refused to charge in accordance with that contention. Theye are two reasons why this exception cannot be sustained. In the \u201ccontention,\u201d as it is called, the plaintiff assumes as a fact that the account was rendered and there was no objection to it within a reasonable time. There was evidence, and very strong evidence, it may be eon-\u00ae ceded, of the fact, but it was for the jury to find the fact from all the evidence. The second reason is, that .there was no request for an instruction, and a mere \u201ccontention\u201d of counsel during the trial cannot be regarded as a compliance with the statute. But it is stated in the record that the Court liad \u201ccalled the attention\u201d of the jury to this matter, that is, liad instructed them- about it, and we must assume hero that the instruction was correct, when it is not set out in the case. The Court then proceeded to charge the jury as follows: \u201cThe plaintiff insists, that if there was the statement of account submitted to the defendant, which ho promised to pay \u2014 if that is so, that would establish that $128.59. If he assented to it, he would be obliged to pay it. There would be no presumption of law about it. If it was submitted to him, and accepted by him, it would devolve upon him to pay it. That is one of the contentions between plaintiff and defendant. Plaintiff says it was submitted to him, and he agreed to pay it. The defendant says it is not so; it was not submitted to him, and was not agreed to by him.\u201d To this instruction the plaintiff excepted.\nWe can see no inherent error in this instruction. Indeed, the Court charged the jury in accordance with the plaintiff\u2019s contention, as it is stated by the Court in that part of the charge we have quoted.\nIf the account was presented for $129.70 and a demand made for that amount, as stated in the defendant\u2019s \u201ccontention,\u201d and of which there was evidence in the case, it was incorrect, as the amount nowT appears to be only $128.59. Besides, the defendant did dispute the account and asked for a settlement as soon as he could find the plaintiff sober and in a condition to transact business.\nIt is true, that \u201cwhen an account rendered is not objected to in a reasonable time, the failure to object will be regarded\nas an admission of (or assent to) its correctness, by the party 'charged.\u201d Hawkins v. Long, 74 N. C., 782; Daniel v. Whitfield, 44 N. C., 297; Wiggins v. Burkham, 10 Wall., 129. In Webb v. Chambers, 25 N. C., 374, Ruffin, C. J., thus states the rule: \u201cThere can be no doubt of the correctness of the opinion given to the jury. It is the ordinary evidence of the justice of a merchant\u2019s account, when he renders it to his customer and the latter keeps it without objection to any of its items. Without a denial of it in toto or some part of it, the jury may infer an admission of its correctness and a promise to pay the- balance.\u201d It is expressed in Gooch v. Vaughn, 92 N. C., 617, as follows: . \u201cThe account rendered, and the long delay in objecting to it on account of suggested errors therein, do not necessarily conclude Gooch. The strong presumption is that he examined and accepted it as correct, and he is bound by it, and it ought not to be disturbed, unless he shall allege and prove some substantial error, mistake, omission or fraud vitiating it. This he has the right to do, if he can, and in case of success, to have just correction made. The burden is on him to prove such allegation.\u201d But however the rule is stated we do not think it applies to this case, in view of its facts and circumstances. It also appears that the Court did in fact charge the jury that, if they found from the evidence the defendant had assented to the plaintiff\u2019s account as rendered, \u201che would be obliged to pay it.\u201d\nWe do not see why the evidence, as to the plaintiff\u2019s habit of drinking liquor excessively, was not competent and relevant. It was offered for the purpose of showing that the' plaintiff was not competent to transact business or to keep-the account correctly. The Court admitted it for that purpose alone, an\u00b0d we think it was some evidence for the consideration of the jury upon that question in dispute between the parties. It' was competent also for other reasons.\nNo error.", "type": "majority", "author": "Wauker, J.," } ], "attorneys": [ "A. M. Slade for plaintiff.", ". Williams & Lemmond for defendant." ], "corrections": "", "head_matter": "D. S. DAVIS v. A. J. STEPHENSON.\n(Filed 19 November, 1908).\n1. Instructions \u2014 Facts Assumed \u2014 Contentions\u2014Questions for Jury.\nA \u201ccontention,\u201d under conflicting evidence, made during tbe , trial of an action brought upon account, that an account had been rendered and kept a reasonable time without objection, cannot be made a basis of exception to the refusal of the Judge to charge accordingly. (1) It assumes the facts as to the absence of objection and the reasonableness of the time the account was kept; (2) It does not meet the requirements of a request for instructions.\n2. Appeal and Error \u2014 Judge\u2019s Charge Assumed to be Correct.\nWhen it is stated in the record that the Court called the jury\u2019s attention to a matter, or had instructed upon it, the charge thereon is assumed \"to be correct on appeal, when it is not set out in the case.\n3. Instructions \u2014 Account Stated \u2014 Acceptance\u2014Questions for Jury.\nUpon conflicting evidence, in a suit brought upon an account, it was riot error to plaintiff\u2019s prejudice for the Judge to charge, the jury there would be no legal presumption that the account was presented and accepted by defendant, and should the jury find that it had been presented and accepted, it would devolve upon the defendant to pay it.\n4. Evidence \u2014 Account Stated \u2014 Correctness\u2014Habitual Drunkenness.\nEvidence that tlie one suing on