MERRILL-STEVENS DRY DOCK COMPANY, APPELLANT,
v.
"CORNICHE EXPRESS" & OWNER MYRON WISOTSKY, APPELLEE
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Merrill-Stevens sought recovery against a ship owner on an account stated theory for dry dock services. The trial court entered judgment for the defendant, finding no agreement between the parties regarding the balance due, and the appellate court affirmed because the defendant disputed both the services performed and their value.
No account stated existed because there was no agreement between the parties that a certain balance was correct and due. The defendant's repeated objections to invoice amounts and marked disagreement on the invoices precluded any express or implicit agreement necessary to establish an account stated. The plaintiff, having pleaded account stated, was not entitled to recovery on another theory.
[1] An account stated requires an agreement between parties that a certain balance is correct and due, along with an express or implied promise to pay that balance.
[2] A dispute as to the performance, value, or authorization of services precludes the existence of an account stated as a matter of law.
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Join FLexlaw to unlock all legal intelligence“For an account stated to exist as a matter of law, there must be an agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance.”
Establishes the legal requirements for an account stated claim
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Join FLexlaw to unlock all legal intelligenceMerrill-Stevens performed services on the vessel Corniche Express owned by Myron Wisotsky. Wisotsky repeatedly objected to invoice amounts and specifi…
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FERGUSON, Judge.
The trial court properly entered judgment for defendant in this action to recover on an account stated where there was a dispute as to the performance of plaintiff’s services, the value of the services and whether the services, if performed, were authorized.
For an account stated to exist as a matter of law, there must be an agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance. Harold R. Clune, Inc. v. Healthco Medical Supply, 433 N.Y.S.2d 52, 78 A.D.2d 914 (1980); Everett v. Webb Furniture Co., Inc., 98 Fla. 780, 124 So. 278 (1929).
Cf. Dudas v. Dade County, 385 So. 2d 1144 (Fla.3d DCA 1980) (account stated proved by implication); Robertson v. Goethel, 369 So. 2d 365 (Fla.3d DCA 1979) (client engaged and accepted services); Breezy Bay, Inc. v. Industria Maquiladora Mexicana, S.A., 361 So. 2d 440 (Fla.3d DCA 1978) (impliedly admitted to correctness of invoices); Basic Food Industries, Inc. v. Wackenhut Corp., 323 So. 2d 1 (Fla.3d DCA 1975) (defendant failed to prove it had not requested services).
The action for an account stated is an action for a sum certain, Monte Produce, Inc. v. Delgado, 126 Ariz. 320, 614 P. 2d 862 (1980); Horace Mann Insurance Company v. Casualty Reciprocal Exchange, 383 So. 2d 1040 (La. 1980); and where there is no such agree ment between the parties, the plaintiff may not recover upon a theory of account stated, Crist Sod Company, Inc. v. Bruce, 599 S.W. 2d 43 (Mo.App.1980); Motive Parts Company of America, Inc. v. Robinson, 53 Ill.App.3d 935, 11 Ill.Dec. 665, 369 N.E. 2d 119 (1977); Sunshine Dairy v. Jolly Joan, 234 Or. 84, 380 P. 2d 637 (1963).
Parties who have had a series of dealings with each other may reach a final accounting and agree on a balance due through an account stated, EIMCO-BSP Service Co. v. Valley Inland Pacific Constructors, Inc., 626 F. 2d 669 (9th Cir. 1980).
After existence of account stated is proved, the account stated may be attacked only by proof of fraud, duress, mistake or other grounds cognizable in equity for the avoidance of an instrument. Gleason v. Klamer, 103 Cal.App.3d 782, 163 Cal.Rptr. 483 (1980).
Here the question is, was there agreement either express or implied giving rise to an account stated. The trial court fount the testimony of Myron Wisotsky that he repeatedly objected to the invoice amounts and the evidence showing that Wi-sotsky had specifically marked the invoices in disagreement as to the amount owed was proof that no agreement amounting to an account stated ever existed between appellant and Wisotsky. See, e. g. Sunshine Dairy v. Jolly Joan, supra. We find there is substantial competent evidence in the record to support the finding of the trial judge and will not disturb his finding on appeal. Basic Food Industries, Inc. v. Wackenhut Corp., supra.
Appellant, having pleaded and attempted to prove liability on a theory of account stated, is not entitled to recovery on another theory. Cooley v. Roman, 286 Or. 815, 596 P. 2d 565 (1979).
The court having found no existence of an agreement establishing an account stated, appellant’s claim for attorney’s fees based on the alleged account stated is also denied.
Affirmed.
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Citator
Cited By (18 total)
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In re Standard Jury Instructions-Contract & Bus. Cases, 116 So. 3d 284 (Fla. 2013)…by (defendant) ]. SOURCES AND AUTHORITIES FOR 416.39 1. There must be an agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance. Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So. 2d 1286, 1286 (Fla. 3d DCA 1981). 2. The action for an account stated is an action for a sum certain, and where there is no such agreement between the parties, the plaintiff may not recover upon a theory of account stated. Merrill-Stevens Dry Dock Co. v. C…1 / 2
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Carpenter Contractors OF Am., Inc. v. Fastener Corp. OF Am., Inc., 611 So. 2d 564 (Fla. 4th DCA 1992)…e reject this as merit-less. For an account stated to exist, there must be agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance. Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So. 2d 1286 (Fla. 3d DCA 1981). Here there was no evidence that the parties agreed on any balance due and owing. Reversed and remanded for entry of a judgment in favor of appellee. WARNER, J., and WALDEN, JAMES H., Senior Judge, concur. HERSEY, J., concurs i…
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Farley v. Chase Bank, 37 So. 3d 936 (Fla. 4th DCA 2010)…stated. Proof of an account stated requires an express or implied agreement between the parties that a specified balance is correct and due and an express or implied promise to pay this balance. See Merrill-Stevens Dry Dock Co. v. Corniche Express, 400 So. 2d 1286 (Fla. 3d DCA 1981). The cause of action is often based upon an implied promise. Thus, when an account statement has “been rendered to and received by one who made no objection thereto within a reasonable time,” a prima facie case for the correctness…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Everett v. Webb Furniture Co., Inc., 98 Fla. 780 (Fla. 1929)
- Dudas v. Dade Cnty., 385 So. 2d 1144 (Fla. 3d DCA 1980)
- Breezy BAY, Inc. v. Industria Maquiladora Mexicana, 361 So. 2d 440 (Fla. 3d DCA 1978)
- Basic Food Indus., Inc. v. The Wackenhut Corp., 323 So. 2d 1 (Fla. 3d DCA 1975)
- Lorna D. Robertson v. Goethel, 369 So. 2d 365 (Fla. 3d DCA 1979)
- Eimco-Bsp Serv. Co. v. Valley Inland Pac. Constructors, Inc., 626 F.2d 669 (9th Cir. 1980)