#### JOHN PURTEL, Adm’r of THOMAS PURTEL v. JOHN M. MOREHEAD et al.

An acknowledgment of a balance, “ due at the end of three months,” for the delivery of certain specified articles, is not a promissory note, because it contains no express promise to pay, but is a stated account; and a partial failure of the consideration, as a mistako in the quantity of the articles delivered, may be proved in reduction of the amount admitted on its face to be due.

This was an action of assumpsit, commenced originally by a warrant before a single justice of the peace. Plea, non assumpsit.

On the trial, before Dick, Judge, at Rockingham, on the last Circuit, the plaintiff produced and proved the following acknowledgment:

“ Morehead and Field bought of Thomas Purtel hides to the amount of ninety-seven dollars and forty-eight cents; and paid him in leather four dollars and eight cents; leaving a balance of ninety-three dollars and forty cents, due him at the end of three months.

Bueton Field,

For Moeehead & Field.”

The defendants on their part offered to prové that the acknowledgment was given as evidence of the probable *240amount due for a quantity of green hides at twelve and a half cents the pound, upon the supposition that their weight was a certain amount; that it was agreed at the time of giving the acknowledgment, that the hides should be weighed when dry, and accounted for at their actual weight; and that upon their being thus weighed, they fell short five hundred or six hundred pounds. His Honor rejected this evidence; and the plaintiff obtaining a verdict, the defendants appealed.

No counsel appeared for the defendants in this Court.

J. W. Norwood, for the plaintiff.

Daniel, Judge.

The paper writing offered in evidence by the plaintiff is not a promissory note; it contains no express promise to pay. It could not be declared on as a promissory note. It is a liquidated and signed account within the meaning of our act of assembly. It is an account stated; and it is so declared on by the plaintiff in his warrant. What is an account stated ? In Trueman v. Hurst, 1 T. Rep. 42, Lord Mansfield said, it is an agreement by both parties, that all the articles are true. This was formerly conclusive, but a greater latitude has of late prevailed in order to remedy the errors which may have crept into the account in surcharging the items. In Holmes and Drake v. D‘Camp, 1 John. Rep. 36, Judge Spencer said, formerly the stating of an account was considered so deliberate an act, as to preclude any examination into the items. A greater iatitute has of late prevailed, and any errors may be shown and corrected; but still the stating of an account is regarded as a consideration for the promise; and it -is in law in the nature of a new promise and supports the count of insimul computasset without any other consideration being shown by the plaintiff. 2263J lbs. of hides at twelve and a half cents per pound, would come to ninety-seven dollars and forty-eight cents, as stated in the account. The defendant wished to prove, that at the time the settlement was made, the above weight of the hides was only conjectural by the parties, as they were then wet, and it was then agreed by the parties, that the hides should be dried and ac*241counted for at their actual weight when dry. When dried, they fell short in weight five or six hundred pounds. Here was an error in the estimation of the weight, which was expressly agreed by the plaintiff’s intestate should be rectified, if detected, on the hides being weighed when dry. The judge refused this evidence going to the jury. We suppose he refused it on -the belief that the paper was a promissory note, and that the partial failure of consideration could not be admitted in evidence according to the case of Washburn v. Picot, 3 Dev. Rep. 390. But we are of the opinion that as it contains no express promise to pay, it is not a promissory note, but the paper must be considered as an account stated ; and then the authorities mentioned in this opinion, oblige us to say, that the evidence was admissible..

Per Curiam. ' J udgment reversed..