App.] Columbus v. Ohio State Tel. Co. in the franchise ordinance, not to exceed $12 per year. We think the fourth defense in relation to the unanticipated cost and extension of the service is not a good defense. The company accepted the ordinance, and its right to maintain this system, including conduits, is based thereon. Whether the company might under the situation set forth in this defense surrender its entire franchise we are not called upon to consider, but having accepted the franchise, including the provision as to the rates, we think that it is not now justified in disregarding the provision as to rates and retaining the favorable provisions of the ordi nance. We are therefore of opinion that the demurrer should be sustained to so much of the answer as is embraced under numbers one, two and four and overruled as to so much of the answer as is embraced under number three. In respect to the motion for a temporary injunction we have considered the affidavits filed by the city in connection with those filed by the defendant in the court below. We have reached the conclusion that the question as to whether all or a part of the extensions of the conduit system over and above the five miles provided for in the ordinance was made by notice or request of the city is quite involved, and we do not deem it advisable to pass. upon this question of fact upon the affidavits before us, but think, as a matter of public convenience, that no interference should be made by a temporary injunction at this time but that the case should be put at issue and tried and determined upon its merits. Sturgell v. Grand Union Tea Co. [13 Ohio The motion for a temporary injunction is therefore overruled. The demurrers to the first, second and fourth defenses of the answer will be sustained, and as to the third defense the demurrer will be overruled. Judgment accordingly. ALLREAD and FERNEDING, JJ., concur. STURGELL ET AL. V. THE GRAND UNION TEA CO. Account stated-What constitutes - Conclusiveness as between parties and surety — Evidence — Admissibility and weightSurety may disprove, when. 1. A statement sent by one of two contracting parties to the other showing the total indebtedness of the latter to the former, with credits for remittances, showing indebtedness as per ledger account, and a written certification by the latter that the statement is correct, constitutes an account stated and is conclusive upon the parties unless impeached for fraud or mistake. 2. Such written certification by one of the contracting parties that the statement is correct is an admission against his surety that he has made default of his obligation, and is receivable in evidence as against the surety, but is not conclusive. 3. An account stated between two contracting parties, of their mutual dealings and transactions under a certain contract, is not binding upon the sureties to a bond of one of the contracting parties, conditioned upon the faithful performance of the contract. Such sureties, under a general denial, may introduce evidence to disprove the net amount due as given in the account stated. (Decided April 7, 1920.) ERROR: Court of Appeals for Franklin county. Messrs. Watson. Stouffer & Davis, for plaintiffs in error. Mr. Henry G. Binns, for defendant in error. App.] Sturgell v. Grand Union Tea Co. SHOHL, P. J. The Grand Union Tea Company entered into an agreement with Chris Sturgeli whereby it agreed to consign certain goods, chiefly coffee, tea, spices and groceries, which he was to sell for it on commission. To guarantee his faithful performance of the contract he gave a bond in the sum of $500, which Gabelman, Myers and Douglas executed as sureties. It was conditioned upon the faithful performance by him of the agreement. After the termination of his employment in February, 1915, an action was brought in the municipal court of Columbus. It was taken to the court of common pleas of Franklin county on appeal. The petition in the court of common pleas may be said to have a double aspect. It alleges the bond and the breach thereof, and further states that "on or about the 13th day of February, and prior to the termination of said contract, February 15th, an account was stated between said plaintiff and said. defendant Sturgell of their mutual dealings and transactions under said contract, on which a balance of $509.45 was found, and is, due to plaintiff from said defendant Sturgell from the proceeds of the sales made by said Sturgell of goods consigned," etc. It will be seen that the petition charges a breach of the bond against all of the defendants and alleges an account stated as between plaintiff and defendant Sturgell. The defendants Myers and Douglas denied the allegations of the petition, except the execution of the bond. Sturgell v. Grand Union Tea Co. [13 Ohio Defendant Sturgell filed a separate answer, admitting the making of the contract, execution of the bond, and denied the other allegations. For a second defense and cross-petition he alleges a breach of the agreement on the part of plaintiff and prays for a judgment against it. Before the case came to trial Gabelman died, but the action was not revived as against him. The case was tried to a jury, but at the conclusion of all the evidence all parties moved for an instructed verdict and consented to the submission of the case to the court. The court rendered judgment in favor of the plaintiff against all of the defendants for the full amount of the bond with interest. We are of opinion that the judgment against Sturgell was valid and must stand. At the trial it appeared that statements were sent to him by the plaintiff showing the total amount of his net indebtedness, with a statement as to the net amount of his last shipment, with credit for the amount of his last remittance, showing his indebtedness to the corporation as per its ledger account. He made written certification that the above statement was correct. That was the practice in the dealings between the parties in the course of his employment. It constituted an agreement between them that the items of the account, representing the transactions and the balance struck, were correct, and that there was due on the account the amount therein specified. It became an account stated and is conclusive upon the parties unless impeached for fraud or mistake. 1 Corpus Juris, 678, 705, 709; Deering & Co. v. Miller & Wikel, 9 C. C., N. S., 392, 64 App.] Sturgell v. Grand Union Tea Co. Ohio St., 548, and Cincinnati v. Cincinnati Street Ry. Co., 6 N. P., 140. No fraud or mistake was pleaded by him, and, therefore, so far as Sturgell was concerned in the claim on the account stated, he cannot complain of the rejection by the court of proof offered to dispute the amount of the account stated. The other parties to the cause stand in a different position. They were not parties to the agreement, whereby the company and Sturgell stated and agreed to the account. Their liability could be based solely upon the bond, as they had no other connection with the company, nor with Sturgell. He was not their agent, and so far as they were concerned he had no authority to consent on their behalf to any extension or modification of their obligation, which was fixed solely by their written contract. They are to pay only in case of a breach of the bond. Unless the plaintiff established that Sturgell did not perform his obligation, which they had undertaken to guarantee, they were not liable. Their liability is for his acts, not his language. (Cook County Liquor Co. v. Brown et al., 31 Okla., 614.) No authority has been cited, nor has any been found, which warrants us in holding that the stating of an account between the obligor and the obligee of a bond is conclusive upon the sureties. His written statement constituted an admission which was receivable in evidence to establish as against the sureties that the principal had made default of his obligation. 2 Wigmore on Evidence, Section 1077; Jones on Evidence (2 ed.), Section 238; 16 Cyc., 1034; 32 Cyc., 137; United American Fire Ins. Co. v. |