The giving of the charges copied as asked by plaintiff, and the refusal to give the charges asked by the defendant, are now assigned as error.

W. H. Smith and C. A. Steed, for appellant. Parsons, Pearce & Kelly and W. M. Lackey, for respondent.

CLOPTON, J. An account stated may be defined, in general terms, to be where an account is rendered, and a debt in a specified sum is acknowledged as due from one party to the other, or where parties who have had previous transactions agree upon a definite balance as due. It is not essential that there should be cross or mutual demands; but when there are mutual demands, there must be an adjustment, a balance struck, and an assent to its correctness. The debtor and creditor must mutually agree as to the respective demands, and as to the balance ascertained on the final adjustment. An admission of an indebtedness in a specified sum is sufficient to constitute a claim an account stated. The admission may be implied from the circumstances. When an account is rendered showing the balance due, and the debtor retains it, without making objection within a reasonable time, his failure or omission to object is presumptively construed as an admission of its correctness. If the charges be all on one side, it is sufficient if there be an acknowl- -edgment or admission, express or implied, of a certain sum due, and, if the account of the plaintiff alone be stated showing the amount due, an acknowledgment or admission of such account is sufficient to constitute it an account stated, though the defendant may have counter-claims which are not deducted. If the items of the account of the plaintiff were read over to the defendant by the agent of the plaintiff, and he made no objection thereto, the claim became an account stated. Nooe v. Garner, 70 Ala. 443; Burns v. Campbell, 71 Ala. 271; Lockwood v. Thorne, 62 Amer. Dec. 85; 2 Greenl. Ev. §§ 126, 127. Tested by these rules, the general charge of the court, and the first and fourth charges given at the instance of plaintiff, may be regarded as asserting correct legal propositions. When there is an admission of the correctness of the items composing the mutual demands, when the minds of both parties concur as to the allowance and disallowance of the various items, it is not requisite to the striking a balance that the one should be subtracted from the other. is sufficient if the balance becomes a matter of mere addition and subtraction. But the fourth charge, while asserting a correct general proposition, was, in view of the evidence, calculated to mislead, and no doubt did mislead, the jury. To entitle a party to recover upon an account stated, he must show a fixed and certain sum to be due, though he need not precisely prove the sum laid in the complaint. In such case the action is not founded on the original liability, but on the defendant's admission that a definite sum is due in the nature of a new promise, express or implied. If the plaintiff would take his claim out of the bar of the statute of limitations as to an open account, he must prove a right to recover upon an account stated. The evidence of the witness Bartlett tended to show a final adjustment of the mutual demands and a balance struck, but there is no evidence tending to show the amount of such balance. On the contrary, the witness stated he could not recollect it, but made an entry of the calculation in plaintiff's book of accounts. The book was not produced to refresh the memory of the witness. On his evidence, the plaintiff was not entitled to recover on an account stated.

It

The third charge requested by defendant was taken verbatim from the opinion in Lockwood v. Thorne, 18 N. Y. 292, and, as a general proposition, is correct, but, when referred to the evidence, is calculated to mislead. The jury would have understood the charge as meaning that if the defendant objected to two items of the account, which his testimony tended to prove, the minds of the parties did not meet upon the allowance and disallowance of each item of the mutual account. When only one or two items of an account, consisting of many, are objected to, this is regarded as an admission of the

correctness of the items to which no objection is made. Burns v. Campbell, supra. An account stated, being an admission of the amount due in the nature of a new promise to pay the same, does not operate to estop the defendant from impeaching it for mistake, unless by some act he causes the plaintiff to alter his position, to his prejudice. Such admission only establishes prima facie the accuracy of the account, and dispenses with other proof of the correctness of the items. It is open to impeachment for fraud, mistake, or errors, the burden of proof being upon the party impeaching. Lockwood v. Thorne, supra; Kock v. Bonitz, 4 Daly, 117.

The second charge requested by the defendant should have been given. Section 2627 of the Code of 1886 provides: "When there are mutual accounts between persons who are not merchants, the time must be computed from the date of the last item, unless the account is liquidated, and a balance struck." Under the statutes it has been held that where there are mutual accounts, consisting of debits and credits, or reciprocal dealings between the parties, if a part of the account is not barred, none is; but if the accounts are not mutual, all the items being on one side, the entire account is not taken out of the statute of limitations because one or more of the items may not be barred. Wilson v. Calvert, 18 Ala. 274; Todd v. Todd, 15 Ala. 743. There is no evidence showing mutual accounts, or an account consisting of debits and credits; the cross-demands of the defendant against the plaintiff consisted of three notes made in 1873, and payable six months after date. So far as disclosed by the evidence, all the items of the account of the plaintiff were on one side, and the accounts are not taken out of the statute because of the notes. These principles will be a sufficient guide on another trial. Reversed and remanded.

ROBINSON et al. v. POGUE et al.

(Supreme Court of Alabama. January 21, 1889.)

1. SALE-WHEN TITLE PASSES.

A contract for the sale of goods was made by the seller's agent, to whom the bill of lading, in which the purchaser was named as consignee, was mailed, together with a bill for the goods, in which it was stated that the goods were shipped to the purchaser at a place named. It was agreed by the purchaser that the agent should retain the bill of lading until payment, but the carrier delivered the goods to the purchaser without presentation of it. There was no evidence that the goods were to be retained until performance of any act by the purchaser, but the evidence was that they were sold on credit. In an action between the seller and one claiming in good faith for value, under a sale from the purchaser, held, that the title passed to the purchaser.

2. SAME RESCISSION-EVIDENCE.

Evidence of declarations by the purchaser to the agent before delivery that he did not want the goods, there being no evidence of the assent of the agent or seller to a rescission, was irrelevant.

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD, Judge. Detinue by Pogue & Son against Robinson & Ledyard for tobacco sold by plaintiffs to Rushton & Co., and by Rushton & Co. to defendants. The defendants requested the court to charge: "(4) If the jury believe from the evidence that the tobacco was delivered to the railroad company, and the bill of lading was made consigning the goods to Rushton & Co., then the title to the goods passed by this delivery to Rushton & Co., although the bill of lading was sent to Simon & Bro., in the absence of proof that the contract of sale required the performance of something on the part of Rushton & Co. before the goods were delivered." The request was refused. Defendants appeal. Tompkins, London & Troy, for appellants. Rice & Wiley, for appellees. SOMERVILLE, J. The bill of sale from Rushton & Co. to Robinson & Ledyard, the appellants, bearing date December 16, 1885, and transferring to

them the stock of merchandise of the vendors in absolute payment of a preexisting debt, is the same instrument construed by us in the case of Robinson v. Fairbanks, 81 Ala. 132, 1 South. Rep. 552, and again in Robinson v. Levi, 81 Ala. 134, 1 South Rep. 534. Upon a state of facts substantially the same as that appearing in the present record we then observed that there could be no question about the fact that the defendants, if the evidence was to be believed, "were bona fide purchasers of the goods for value, and without notice of any alleged defect in the title of Rushton & Co., just as fully as if they had paid the cash for them." No controversy was made upon the trial raising any question as to the correctness of this ruling. There are many assignments of error in the present record. We do not propose to notice any of these except such as are insisted on in the brief of appellants' counsel, the others appearing to be without merit.

The main contention here insisted on, and raised by the rulings of the circuit court, relates to the title acquired to the goods in controversy by Rushton & Co., the consignees of the plaintiffs. If the sale of the tobacco to them was completed by an actual or constructive delivery, and the intention of the vendors was that the title should unconditionally pass, then the appellants, Robinson & Ledyard, acquired a good title; otherwise not. The contract for the sale of the goods was made by Simon & Bro., of Montgomery, Ala., as agents of the plaintiffs. The shipment was made by railroad, and a bill of lading was taken, in which Rushton & Co. were named as the consignees. This bill of lading was mailed to Simon Bros., with a bill for the goods on which were written the words "Shipped to Rushton & Co., Montgomery, Ala." It was agreed between Rushton & Co. and Simon & Bro. that the latter were to "retain the bill of lading" until the goods were paid for, but there is no evidence that the goods themselves were to be retained until the price was paid. The evidence, on the contrary, tends to prove that the sale was made on credit, after closely inquiring into the financial status of the consignees. The tobacco was delivered by the railroad to the consignees, without the presentation of the bill of lading.

Where goods have been sold and are delivered by the vendor to a common carrier, consigned without reservation to the vendee, the question as to whether the title eo instanti passes to such consignee, depends upon the intention of the vendor, to be gathered from all the circumstances of the case. There is no doubt as to the correctness of the general rule that where the bill of lading shows a consignment by the vendor to the vendee, in ordinary form, and no other circumstance appears as to the intention, the prima facie legal presumption is that an unconditional delivery to the consignee is contemplated. But this presumption of fact may be rebutted by evidence showing a contrary intention. Jones v. Sims, 6 Port. (Ala.) 138, (1837;) Ezell v. English, Id. 317; Emery v. Bank, 25 Ohio St. 360; 2 Amer. & Eng. Cyclop. Law, 242; People v. Haynes, 14 Wend. 546; Everett v. Coffin, 6 Wend. 603; Ostrander v. Brown, 15 Johns. 39, 8 Amer. Dec. 218, note; Express Co. v. Greenhalgh, 80 Ill. 68. The title of the goods is commonly retained in the consignor, by taking the bill of lading to his own order, or in blank, or by drawing on the consignees with the bill of lading attached to the draft, or other like procedure, indicating an intention to retain in himself a jus disponendi over the goods until the price is paid, or until the happening of some other contingency. McCormick v. Joseph, 77 Ala. 236; Chandler v. Sprague, 38 Amer. Dec. 417-421, note; Bank v. Jones, 55 Amer. Dec. 299, note; Dows v. Bank, 91 U.S. 618. The delivery to the common carrier, in cases of the former class, is deemed prima facie a delivery to the consignee, not only when the consignment is made to a carrier named by the consignee, but also when made to some carrier in the usual course of trade, who thus becomes impliedly the agent of the consignee to receive and transport the goods at his risk, the sale thus becoming presumptively complete at the point of shipment,

although the price is not to be paid until the goods reach their destination. Garbracht v. Com., 96 Pa. St. 449; Pilgreen v. State, 71 Ala. 368; Sarbecker v. State, 65 Wis. 171, 26 N. W. Rep. 541; Hausman v. Nye, 62 Ind. 485. Hence it is commonly held that the consignee in a bill of lading, where there is no reservation of title by the consignor, has vested in him such a property in the goods as to authorize him to sue the carrier, in his own name, for their injury, loss, or recovery in trover, detinue, or other appropriate action. Chandler v. Sprague, 38 Amer. Dec. 423, note; Potter v. Lansing, 3 Amer. Dec. 310, 318, note; Ang. Carr. § 497; Griffith v. Ingledew, 9 Amer. Dec. 444; Express Co. v. Armstead, 50 Ala. 351; Railroad Co. v. Williams, 54 Ala. 168.

Under these principles of law, the refusal of the fourth charge requested by the appellants was error. If the facts hypothesized in this charge were believed by the jury, the consignees could have recovered the goods from the railroad company. Hence their delivery without presentation of the bill of lading did not presumptively prejudice the rights of the consignees. The case presents no question whatever involving the rights of a transferee of the consignor, claiming an interest by purchase in the property as holder of the bill of lading. If the sale was on credit, and the goods were not to be retained until the price was paid, the mere retention of the bill of lading by the agent of the consignor would not prevent the sale from becoming complete. We cannot perceive that the case is affected by Rushton & Co.'s declaration, made to Simon, before delivery of the goods by the railroad, that they did not want the goods, inasmuch as there was no evidence tending to show the assent of Simon & Bro., or their principals, the consignors, to release the consignees from the purchase, or to rescind the trade. It required the concurring assent of both contracting parties to rescind the trade, just as fully as it did originally to make it. Neither alone could do so. The evidence on this point was irrelevant, and should have been excluded. The judgment is reversed, and the cause remanded.

GRAHAM v. WOODAL.

(Supreme Court of Alabama. March 2, 1889.)

1. ARBITRATION AND AWARD-ACTION ON AWARD-Defense.

It is a good defense to an action at law on an award that the arbitrators, after hearing plaintiff's testimony, adjourned, informing defendant that they would hear his testimony at another time of which he should have notice, but rendered the award without hearing him, or giving him notice of any further hearing.

2. APPEAL-REVIEW-HARMLESS ERROR.

A demurrer to a plea setting up affirmative matters was sustained. The cause was tried at another term, when plaintiff offered to join issue on such plea, which defendant declined. Held, that a record showing those facts did not show that error in sustaining the demurrer was harmless.

Appeal from circuit court, Calhoun county; JOHN B. TALLY, Judge. Action by W. J. Woodal against J. R. Graham. Defendant appeals. Brothers, Willett & Willett and J. H. Savage, for appellant. Caldwell & Johnston, for appellee.

STONE, C. J. The present suit counts on an award of arbitrators, made on agreed submission, without any order of court therefor. There was a demurrer to the complaint, which was rightly overruled. 1 Amer. & Eng. Cyclop. Law, 707, note 1. The defendant Graham pleaded several pleas in defense, to which plaintiff demurred, and the court sustained his demurrer. Declining to plead further, plaintiff had judgment.

Each of defendant's pleas set up substantially the same defense, but we

will confine what we have to say to those numbered 1 and 2, as some of the others are insufficient. The substance of the defense is that the defendant had a good defense, which he was prepared to prove by witnesses; that the arbitrators heard plaintiff's testimony, and then adjourned, informing defendant that they would hear his testimony at another time, of which he should have notice, but they rendered their award without hearing his testimony, and without giving him notice of any further sitting. This the pleas allege and rely on as constituting partiality and fraud in the award.

There has been contrariety of decision on the question whether fraud or partiality in the arbitrator can be raised as a defense to an action at law founded on the award. Some decisions hold that the defense can be made only in equity. We think, however, that both principle and the sounder line of authorities require us to hold that when such abuse has been practiced as the pleas in this case assert, the award furnished no just ground for a recovery in an action at law. It has been assimilated, and rightly, to a judgment of a court of limited jurisdiction rendered without acquiring jurisdiction of the person, and therefore a nullity. Cobb v. Wood, 32 Me. 455; Hook v. Philbrick, 23 N. H. 288; Goodall v. Cooley, 29 N. H. 48; Webber v. Ives, 1 Tyler, 441; Crowell v. Davis, 12 Metc. 293; Lincoln v. Manufacturing Co., 8 Cush. 415; Strong v. Strong, 9 Cush. 560; Elmendorf v. Harris, 23 Wend. 628; Peters v. Newkirk, 6 Cow. 103; Jordan v. Hyatt, 3 Barb. 275; McCormick v. Blackford, 4 Grat. 133; Tate v. Vance, 27 Grat. 571; McFarland v. Mathis, 10 Ark. 560; Lutz v. Linthicum, 8 Pet. 165. The following cases may be consulted with profit: Water-Power Co. v. Gray, 6 Metc. 131; Conrad v. Insurance Co., 4 Allen, 20; Newland v. Douglass, 2 Johns. 62; Paul v. Cunningham, 9 Pa. St. 106; Speer v. Bidwell, 44 Pa. St. 23; Sisk v. Garey, 27 Md. 401; Cothran v. Knox, 13 S. C. 496; Hyeronimus v. Allison, 52 Mo. 102; Torrance v. Amsden, 3 McLean, 509.

The circuit court erred in sustaining the plaintiff's demurrer to pleas 1 and 2. After the ruling on the demurrers to the pleas, the cause was continued to the next term of the court. At the next term, the cause came on to be tried. The judgment entry recites that "plaintiff offered to join issue on the pleas, to which demurrers were sustained at a former term of this court. Defendant declines to offer said pleas." It is contended for appellee that this rejected offer healed the error of the court's ruling on demurrer, and leaves the appellant without just cause of complaint. In other words, that it rendered the court's ruling error without injury.

We need not announce what would be our ruling if the court had expressed a willingness to reverse its decision on the demurrer, and the defendant had rejected the offer. No such announcement is shown to have been made. But, even in the supposed case, there might have been grave reasons for refusing the offer. When affirmative matters of defense are pleaded, the burden of proving their truth is on the pleader. He is expected and required to have his witnesses in attendance for the purpose. After his defense is solemnly adjudged to be insufficient, he is not expected to make any attempt to establish it. It would be improper in him to do so. We cannot know why the offer was rejected; and inasmuch as the defendant may have had a good reason for his conduct, it is not affirmatively shown that the court's erroneous ruling did him no injury. Mitcham v. Moore, 73 Ala. 542; Rice v. Drennen, 75 Ala. 335. The present record does not present a case for the application of the rule of error without injury.

Reversed and remanded.