2 Campbell v. Taylor, 3 Utah, 325.

3 Logan v. Railroad Co. 90 Ind. 552.

4 Trustees etc. v. Hills, 6 Cowen, 23; 16 Am. Dec. 429; John v. Farmers' etc. Bank, 2 Blackf, 367; 20 Am. Dec. 119; White v. State, 69 Ind. 273; Logan v. Railroad Co. 90 Ind. 552,

2120. Account-Account stated.—An account is defined to be a detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation.1 As generally employed, the word applies to transactions between persons, in which, by sale upon the one side, and purchase upon the other, the relation of debtor and creditor is created by general course of dealing, and it does not apply to one or more isolated transactions resting upon special contract." And it is held that, if the complaint counts only on a balance due upon an open, mutual, and current account, the plaintiff cannot recover a sum due on a special contract relating to a matter not included in the mutual account.3 The term

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"open account" is used in opposition to a "stated account," wherein an account is closed by an assent to its correctness by the party charged. To constitute an account, it is not necessary that the items be entered in an account book, provided they are such as usually form the subject of book account; and the items of the account need not be all of the same class. Nor is it necessary for a party to set forth, in a pleading, the items of an account therein alleged, but he must deliver to the adverse party, after a written demand thereof, a copy of the account, and if he fails so to do, he is precluded from giving evidence of the account. It is a sufficient giving "a copy of the account," to set down in writing in the form of an account the items thereof, and file it with the complaint or petition, without having previously made any entries in an account book. And a complaint in an action on an account, averring

that the defendant is indebted to the plaintiff upon it, referring to a bill of particulars filed, which then follows with "leaving due and unpaid" a specified sum, sufficiently shows that the account is due and unpaid." If several accounts against one as executor, guardian, and trustee are all so united that they cannot be conveniently separated, they may be set up in the same complaint, and that the several causes are so combined is not a good ground of demurrer. 10 In an action on an account, a copy of which was attached to and made a part of the petition, there being, however, no assignment of the account sued on to the plaintiff, nor allegation showing ownership in him, it was held that the petition would not support a judgment in the plaintiff's favor."1 In order to maintain an action upon an account stated, it must appear that the account has been balanced and rendered, with an assent on the part of the defendant, either express or implied, to the balance; 12 and if such assent is not proved, the complaint will be dismissed, unless amended, although there be some evidence of indebtedness.13 To enable a plaintiff to recover, as upon an account stated, upon written statements or accounts made out and rendered by the defendant, he must declare upon them as such; and if in his complaint he sets out the original transactions, and not the account stated, as the grounds of his action, either party may prove what the original transactions were.1 An averment that one party made a statement of account which he delivered to the other, who made no objections to it, is not an averment that an account was stated between them, but at most is only evidence tending to show one.13

1 Stringham v. Board of Supervisors, 24 Wis. 534. See Seaman v. Low, 4 Bosw. 337; Dowdney v. Volkening, 5 Jones & S. 313.

2 McCamant v. Batsell, 59 Tex. 363.

3 Hopkins v. Orcutt, 51 Cal. 587.

4 McCamant v. Batsell, 59 Tex. 363. And see Trapnall v. Hill, 31 Ark. 345; Quincey v. White, 63 N. Y. 370; Avery v. Leach, 9 Hún, 103; Seymour v. Marvin, 11 Barb. 80; Toland v. Sprague, 12 Peters, 335; Wiggins v. Burkham, 10 Wall. 129; Robson v. Bohn, 22 Minn. 410.

5 Black v. Chesser, 12 Ohio St. 621.

6 Dudley v. Geauga Iron Co. 13 Ohio St. 168; Ballas v. Ferneau, 25 Ohio St. 635; Ralston v. Kohl, 30 Ohio St. 92.

7 See N. Y. Code Civ. Proc. 531; Cal. Code Civ. Proc. 454; N. C. Code Civ. Proc. 118; Johnson v. Mallory, 2 Robt. 681; Barkley v. Railroad Co. 15 N. Y. Week. Dig. 314; McKinney v. McKinney, 12 How. Pr. 22; Fullerton v. Gaylord, 7 Robt. 551; Collingwood v. Merchants' Bank, 15 Neb. 118.

8 Black v. Chesser, 12 Ohio St. 621.

9 Gordon v. Gordon, 96 Ind. 134; Mayes v. Goldsmith, 58 Ind. 94. And see De Witt v. Porter, 13 Cal. 171.

10 Oliver v. Wiley, 75 N. C. 320.

11 Thompson v. Stetson, 15 Neb. 112.

12 Volkening v. Degraaf, 81 N. Y. 268; 12 Jones & S. 424.

13 Volkening v. Degraaf, 81 N. Y. 268; 12 Jones & S. 424. And see Stenton v. Jerome, 54 N. Y. 430; Bernard v. Seligman, 54 N. Y. 661; Lockwood v. Thorne, 18 N. Y. 285.

14 Northern Line Packet Co. v. Platt, 22 Minn. 413.

15 Emery v. Pease, 20 N. Y. 62.

? 121. Accounting.—In an action for an accounting, the general rule is, that all persons who are interested in the accounting should be made parties,1 although their interests do not accrue in the same right.2 But in such an action, between numerous parties, embracing many and complicated transactions, it is not desirable and is scarcely possible, that all the claims of the parties, in respect to the various items necessary to be passed upon and adjudicated in settling an account between them, should be made matter of distinct averment in the pleadings.3 Nor is it necessary, to entitle a party to an accounting and to the benefits of the accounting, that he should set out a detailed history of his adversary's dealings. Thus, if a partner being without fault can show that his adversary has violated the terms of the partnership contract, and abused the trust with which, as a partner, he was clothed, and that he has partnership assets which he has not accounted for, this

entitles such partner to an accounting. And the complaint or petition is not demurrable because it does not, in terms, allege that the defendant had possession of any of the partnership property, or that he had any accounts to render. And in a suit between partners for a dissolution and an accounting, it is enough to state the gross amount due to the plaintiff, without stating the items of the account; nor need the complaint aver either the amount put in or taken out by either partner, these being incidental matters to be ascertained by the proof. But a partner who sues his associate for an accounting must aver and prove, if denied, an indebtedness, or at least a probable indebtedness. In an action against an agent for not accounting, etc., a request to account and pay over must be alleged in the complaint, and proved at the trial.10 In an action against agents to compel an accounting, under their contract to sell on commission and render their accounts periodically, the complaint is not to be regarded as setting up separate causes of action, because it alleges different transactions, and among them, misappropriation of moneys." Where a complaint in an action for a dissolution and accounting alleges a partnership with the defendant, and the answer is a general denial, and the court finds that no partnership existed, but that the plaintiff had made various advances for legal interest and a share of the profits, it is error to decree an accounting. A complaint in an action for an accounting touching the affairs, rents, and proceeds of a water ditch, and for a sale of the property and a division of the proceeds, which first avers in general terins a partnership between the plaintiff and defendants in the ditch, without averring any partnership agreement, and then states that the plaintiff acquired his interest in the ditch by the purchase of an undivided interest from other persons than the de

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fendants, does not state facts sufficient to constitute a cause of action, either for a dissolution and settlement of the affairs of a partnership, or for a partition.13 In an action against a trustee for an accounting, it should plainly appear from the complaint that no account within a reasonable time had been previously rendered, and it is not sufficient to show that the trustee had refused a demand for an account; but it is not proper in such action to set up in the complaint a former accounting alleged to be collusive, and which, therefore, the plaintiff seeks to avoid. A former accounting to be effectual as a bar to an action for an account must be pleaded.16 So the right of the defendant to an accounting must be specifically pleaded, in order to be available as a ground of affirmative relief." In an action for an accounting against a trustee, the fact that the trustee has accounted under a previous judgment, in an action by a beneficiary for himself and all others who might come in, will not be a bar, if the plaintiff shows that such judgment was collusive, and in fraud of his rights.18

1 Petrie v. Petrie, 7 Lans. 90; Fisher v. Hubbell, 7 Lans, 481; 65 Barb. 74; Silsbee v. Smith, 41 How. Pr. 418; 60 Barb. 372; Petree v. Lansing, 66 Barb. 357; Southall v. Shields, 81 N. C. 25.

2 Littell v. Sayre, 7 Hun, 485; Skidmore v. Collier, 8 Hun, 50.

3 Babcock v. Camp, 12 Ohio St. 11.

4 Holladay v. Elliott, 3 Oreg. 340.

5 Holladay v. Elliott, 3 Oreg. 340. And see Babcock ". Hermance, 48 N. Y. 683; Davis v. Grove, 2 Robt. 134, 635; Ludington v. Taft, 10 Barb. 447; Haines v. Hollister, 64 N. Y. 1.

6 Carlin v. Donegan, 15 Kan. 495. See Kuehnemuudt v. Haar, 14 Jones & S. 188; Ludington v. Taft, 10 Barb. 447.

7 Kimble v. Seal, 92 Ind. 276. See West. v. Brewster, 1 Duer, 647. 8 Kimble v. Seal, 92 Ind. 276.

9 Hunt v. Gorden, 52 Miss. 194.

10 Bushnell v. McCauley, 7 Cal. 421.

11 Walker v. Spencer, 13 Jones & S. 71.

12 Arnold v. Angell, 62 N. Y. 508. And see Hollister v. Englehart, 11 Hun, 446.

13 Bradley v. Harkness, 26 Cal. 63.