Wilson v. Waldron

The opinion of the court was delivered by

Gordon, J.

We cannot agree with appellants’ contention that this action is upon an account stated. The complaint alleges an indebtedness upon an account for *150merchandise sold and delivered between certain dates, and sets out the items, but nowhere alleges any accounting. The original transactions were still open for proofs, and the court committed no error in failing to charge the jury that respondent was estopped from denying that he ever ordered or received the goods. To enable one to recover upon an account stated he must declare upon it as such.…