ROBERT C. MALT & COMPANY, AND ROBERT C. MALT, INDIVIDUALLY, APPELLANTS,
v.
KELLY TRACTOR COMPANY, APPELLEE
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Robert C. Malt & Company appeals a summary judgment in favor of Kelly Tractor Company on a creditor's claim for an unpaid account stated and open account for parts. The court reversed, holding that the appellants' affidavits raised genuine issues of fact regarding whether all invoiced parts were actually delivered, which could overcome the presumption of correctness of an account stated.
The court reversed summary judgment, holding that the appellants' affidavits raised genuine issues of fact regarding whether the goods were actually delivered, which, if proved and accepted at trial, would overcome the presumption of correctness of an account stated. The fact that the defense was not formally pleaded as an affirmative defense should not deprive appellants of their day in court.
[1] An account stated is established when a debtor fails to object to a creditor's bill within a reasonable time.
[2] A debtor may overcome the presumption of correctness of an account stated by proving fraud, mistake, or error.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Generally, an account stated is established where a debtor does not object to a bill from his creditor within a reasonable time.”
Establishes the general rule that non-objection to a bill within a reasonable time creates an account stated.
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Join FLexlaw to unlock all legal intelligenceKelly Tractor Company sued Malt for unpaid parts listed on an invoice dated August 31, 1985. Kelly alleged Malt had not objected to the statement and …
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STONE, Judge.
The defendants appeal from a summary final judgment on a creditor’s claim based upon an account stated and an open account for goods sold.
Kelly Tractor Company alleges that appellant Malt was indebted for parts identified on an invoice. Kelly’s complaint alleged that Malt had not objected to the statement and had expressly or impliedly agreed to it. The defense was a general denial of each of the essential paragraphs. Kelly’s affidavit in support of its motion for summary judgment was a simple statement by its credit manager that the allegations were true.
The appellants filed three affidavits in opposition to the summary judgment, and in support of a motion for rehearing. First, an employee stated that he had inspected appellants’ tractor and determined that a majority of the parts listed on the invoice were not used in it, nor did appellants own any other equipment that could use those parts. Next, Malt, appellant’s president, essentially stated that appellants never owned any other equipment, other than the tractor referred to, that would use the products in the invoice. In his final affidavit Malt stated that neither he, personally, nor his company owed the full amount claimed, nor did they receive the majority of the parts listed on the invoice. The affidavits did not specify which portion of the invoice the defendants admitted was due. However, it is clear that the affidavits asserted by inference that the invoice was inaccurate, since some of the goods were not delivered.
Generally, an account stated is established where a debtor does not object to a bill from his creditor within a reasonable time. See, e.g., Martyn v. Amold, 36 Fla. 446, 18 So. 791 (1895); Dudas v. Dade County, 385 So. 2d 1144 (Fla. 3d DCA 1980); Rauzin v. Kupper, 139 So. 2d 432 (Fla. 3d DCA 1962). The invoice was dated August 31, 1985. The creditor’s complaint was filed some four months later in January 1986. Appellee consequently asserts that the general denial followed by the affidavits in opposition to the motion for summary judgment constitutes a failure to respond within a reasonable time.
Kelly further contends that the pleadings do not reflect appellants’ defense, and that the affidavits do not clearly address the issues. Appellants, however, argue that they are entitled to have the issues considered in the light most favorable to them, as the non-moving parties. See Holl v. Talcott, 191 So. 2d 40 (Fla.1966). They further contend that they are entitled to the benefit of any inferences which may be drawn from the affidavits. See Harvey Building, Inc. v. Haley, 175 So. 2d 780 (Fla. 1965).
In Dudas v. Dade County, a summary judgment in favor of a creditor was affirmed where there was a gap of six years between a statement and a demand for a refund of an overpayment. The court approved the trial court’s finding, as a matter of law, that there had been no objection within a reasonable time. Generally, however, a debtor may overcome the presumption of correctness of an account stated by meeting the burden of proving fraud, mistake or error. See, e.g., Gendzier v. Bielecki, 97 So. 2d 604 (Fla.1957); Home Health Services of Sarasota v. McQuay-Garrett, Sullivan & Company, 462 So. 2d 605 (Fla. 2d DCA 1985).
The denials in appellants' answer do not specifically raise error or mistake as an affirmative defense. However, the affidavits submitted by appellants do raise genuine issues of fact which, if proved and accepted at trial, would overcome the presumption of correctness of an account stated. The fact that this defense was not more specifically raised in the answer should not deprive appellants of their day in court. Cf. DeAtley v. McKinley, 497 So. 2d 962 (Fla. 1st DCA 1986); Home Health Services of Sarasota v. McQuay-Garrett, Sullivan & Company, 462 So. 2d 605 (Fla. 2d DCA 1985).
We, therefore, reverse the summary final judgment and remand for further proceedings. We further note, for the benefit of the trial court, that a substantial amount of the sums allegedly due have been acknowledged, in oral argument, as undisputed.
GLICKSTEIN, J., and BLOOM, PHILIP, Associate Judge, concur.
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Citator
Cited By (13 total)
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Derius v. Allstate Indem. Co., 723 So. 2d 271 (Fla. 4th DCA 1998)…r sues on an account stated and establishes the necessary elements of the cause of action, the burden shifts to the defendant to show that the account is incorrect due to fraud, mistake or [*274] error. See Robert C. Malt & Co. v. Kelly Tractor Co., 518 So. 2d 991, 992 (Fla. 4th DCA 1988).…
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In re Standard Jury Instructions-Contract & Bus. Cases, 116 So. 3d 284 (Fla. 2013)…by the failure to object to the account statement. Myrick v. St. Catherine Laboure Manor, Inc., 529 So. 2d 369, 371 (Fla. 1st DCA 1988). 5. An objection to an account must be made within a reasonable time. Robert C. Malt & Co. v. Kelly Tractor Co., 518 So. 2d 991, 992 (Fla. 4th DCA 1988). 6. Fla. R. Civ. P. 1.933 (Form) (“A copy of the account showing items, time of accrual of each, and amount of each must be attached” to the Complaint). 416.40 MONEY HAD AND RECEIVED (Claimant) claims that (defendant) has…
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Farley v. Chase Bank, 37 So. 3d 936 (Fla. 4th DCA 2010)…aquiladora Mexicana, S.A., 361 So. 2d 440, 441 (Fla. 3d DCA 1978). A debtor may overcome a prima facie case of an account stated by “meeting the burden of proving fraud, mistake[,] or error” in the account. Robert C. Malt & Co. v. Kelly Tractor Co., 518 So. 2d 991, 992 (Fla. 4th DCA 1988); Gendzier, 97 So. 2d at 608. The cause of action for an account stated is based on “the agreement of the parties to pay the amount due upon the accounting, and not any written instru [*938] ment.” Whittington v. Stanton, 63…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Gendzier v. Bielecki, 97 So. 2d 604 (Fla. 1957)
- Holland Paving Co., Inc. v. Dann, 175 So. 2d 780 (Fla. 1965)
- Harvey Bldg., Inc. v. Ocie M. Haley, 175 So. 2d 780 (Fla. 1965)
- Martyn v. J. E. Amold & Co., 36 Fla. 446 (Fla. 1895)
- Dudas v. Dade Cnty., 385 So. 2d 1144 (Fla. 3d DCA 1980)
- Jackson v. State, 497 So. 2d 962 (Fla. 1st DCA 1986)
- Home Health Servs. OF Sarasota, Inc. v. McQUAY-Garrett, 462 So. 2d 605 (Fla. 2d DCA 1985)
- Moe Rauzin v. Kupper, 139 So. 2d 432 (Fla. 3d DCA 1962)