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the defendant for such rents the amount of money expended by the plaintiff in their behalf and the reasonable value of his services performed for their benefit. Blondel v. Bolander, 80 Neb. 531 (114 N. W. 574). Jurisdiction.

2. (1876.) Under the code, discovery has ceased to be one of the objects sought in a court of equity. Jurisdiction, therefore, in cases of mutual accounts between the parties, cannot be maintained on that ground, and is restricted to cases which have their origin in intimate or confidential relations of the parties, and does not extend to ordinary cases of mutual accounts between creditor and debtor. Lamaster v. Scofield, 5 Neb. 148.

3. (1892.) A justice of the peace has no jurisdiction over an action for an accounting between persons of a fiduciary re

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4. (1895.) A judgment in an action for an accounting reversed and sent to a referee to make certain reports, which report is affirmed and decree entered. Warren V. Raben, 46 Neb. 115 (64 N. W. 355).

5. (1899.) In an action for an accounting, when the amount of recovery awarded by the verdict is too small, it may call for a reversal of the judgment. Yager v. Exchange Nat. Bank, 57 Neb. 310 (77 N. W. 768).

6. (1903.) Where, in an action for an accounting, questions of fact only are presented and the trial court's findings are supported by the evidence, the decree will not be disturbed. Haslach v. Wolf, 4 Unof. 306 (93 N. W. 996).

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the debtor's money in the hands of the creditor, but also a disbursement of the creditor's private funds for the debtor's use and benefit, is a legitimate and valid charge. Sibley v. Rice, 58 Neb. 785 (79 N. W. 711). Application of payments.

2. (1888.) In an action on an account, part of which was barred by the statute of limitations, it was the duty of the court to apply all the payments made before the bar of the statute, to the liquidation of that part of the debt which was barred; and if any part of the plaintiff's claim was not barred, to render judgment thereon for the amount

due. Ashby v. Washburn, 23 Neb. 571 (37

N. W. 267).

Interest.

3. (1892.) Unsettled accounts do not draw interest until the expiration of six months from the date of the last item therein. Staker v. Begole, 24 Neb. 107 (51 N. W. 468); (1897) Garneau v. Omaho Printing Co., 52 Neb. 383 (72 N. W. 360).

4. (1902.) Money due on an unsettled book account for goods sold and delivered, will only bear interest at the rate of seven per cent., beginning six months after the date of the last item. But where, in a suit on such account, evidence is introduced showing that at the time the goods were ordered it was agreed between the parties that the account should draw interest at ten per cent. after a certain date, and a jury allowed such interest, the verdict will not be set aside for that reason only. Lindell v. Deere, Wells & Co., 66 Neb. 87 (92 N. W. 164).

Limitation of action,

5. (1901.) An action on account is barred in four years. Mizer v. Emigh, 63 Neb. 245 (38 N. W. 478). Pleading.

6. (1881.) A petition which states that certain goods were sold and delivered by the plaintiffs to the defendants, sets forth a copy of the account, alleges that there are no credits thereon and no part thereof has been paid, and that there is due from the defendants to the plaintiffs a definite sum, is not subject to demurrer as not stating a Sonnenof action. Stubendorf v.

cause

schein, 11 Neb. 235 (9 N. W. 91).

7. (1883.) The action was on an account, a copy of which was attached to and made a part of the petition. The account was between the plaintiff in error and F. L. Stetson & Co. and showed a balance in favor of the latter. There being no assignment of the account by F. L. Stetson & Co. to David R. Stetson, the defendant in error, nor any allegation showing ownership in him, held, that the petition would not support the judgment in his favor. Thompson v. Stetson, 15 Neb. 112 (17 N. W. 368).

8. (1883.) The provision of section 129 of the code, which provides in effect that a plaintiff may set out in his petition a copy of the account or instrument sued on, with all credits, and allege that there is due thereon from the defendant to the plaintiff a specified sum, is permissive merely, and

the facts may be averred in any proper form. Collingwood v. Merchants Bank, 15 Neb. 118 (17 N. W. 359); (1899) Fletcher v. Co-operative Publishing Co., 58 Neb. 511 (78 N. W. 1070).

9. (1891.) A petition alleging that there is due from defendant to plaintiff, for laborer's wages for work and labor done and performed by the plaintiff for the defendant at ber request, in the years 1886, 1887, and 1888, the sum of $466.55, no part of which has been paid, states a sufficient cause of ac tion, although subject to a motion to make more definite and certain. Small v. Poffenbarger, 32 Neb. 234 (49 N. W. 337).

10. (1891.) Prayer in the petition should be for a definite sum and not "for the amount of said bill, with costs." Flannagan v. Heath, 31 Neb. 776 (48 N. W. 904).

11. (1896.) In an action founded upon an account it is sufficient for the plaintiff to give a copy of the account with all credits and indorsements thereon and to state that there is due to him on said account from the defendant a specified sum which he claims with interest. McArthur v. Clarke Drug Co., 48 Neb. 899 (67 N. W. 861).

12. (1896.) Where the facts stated in an account and in the petition in a suit thereon, under section 129 of the code, show a liability of defendant to plaintiff, a demurrer on the ground that the petition does not state a cause of action cannot be sustained. McArthur v. Clarke Drug Co., 48 Neb. 899 (67 N. W. 861).

13. (1899.) Where, in a suit on account, a copy of such account is attached to the petition; and where terms are used in the petition which clearly show the sig nificance of the figures; and where the account, as shown by the copy, is admitted in the answer, an objection that the petition is defective will not avail. Minzer v. Willman Mercantile Co., 59 Neb. 410 (81 N. W. 307).

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murrer, provided the matters alleged in such pleadings amount to a cause of action or defense. Home Fire Ins. Co. v. Arthur, 48 Neb. 461 (67 N. W. 440, 441).

16. (1896.) In a suit on an account for goods sold and delivered, where the petition is framed under said section 129 and there is attached to such petition a copy of the account sued on, such account must be considered as a part of the petition when conMcArthur struing the allegations thereof.

v. Clarke Drug Co., 48 Neb. 899 (67 N. W. 861).

Answer.

17. (1899.) In a suit on an account for services an answer containing a general denial and averring that the charges are unreasonable and unjust does not present inconsistent defenses. Cate v. Hutchinson, 58 Neb. 232 (78 N. W. 500).

Amendments.

18. (1898.) Where a bill of particulars filed before a justice of the peace and a petition filed on appeal to the district court declare on an account in favor of plaintiff as the original creditor, the petition cannot be amended during the trial in the district court, to show that plaintiff claims by assignment. Western Cornice & Mfg. Works v. Meyer, 55 Neb. 440 (76 N. W. 23).

Issues on assigned account.

19. 1892.) Where there is an absolute assignment of an account so that the assignor parts with his entire interest therein, as between the parties the amount of consideration therefor is not a material inquiry. Barnett v. Ellis, 34 Neb. 539 (52 N. W. 368). 20. (1892.) If there was a defense to the account when assigned, and the assignee is a mere donee, the same defense may be interposed as if the action was by the assignor. If the assignor claims as a bona fide purchaser and the rights of creditors are affected, the amount and kind of consideration become material. Barnett Ellis. 34 Neb. 539 (52 N. W. 368).

v.

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rather than his initial letters. Small v. Sandall, 48 Neb. 318 (67 N. W. 156).

Presumptions.

23. (1898.) Where the relation of debtor and creditor exists, an account rendered and not objected to within a reasonable time, is to be regarded as prima facie correct. Missouri P. R. Co. v. Palmer, 55 Neb. 559 (76 N. W. 169).

Burden of proof.

24. (1891.) When an action is brought upon an account for goods sold and delivered, the burden of proof is upon the defendant to prove payment. Lamb v. Thomp son, 31 Neb. 448 (48 N. W. 58).

Admissibility of evidence.

25. (1895.) In an action to recover for lumber sold and delivered it was not error to suppress from depositions of plaintiff and an alleged assignor of the order from defendant as the evidence shows the lumber was billed by mistake the plaintiff may recover regardless of the assignment. Bushnell v. Chamberlain, 44 Neb. 751 (62 N. W. 1114).

26. (1898.) Rejection of a lease be tween landlord and tenant in an action on an account for labor performed on the premises by a third person prior to the time when the tenancy was to commence, not prejudicial error. Herzke v. Blake, 54 Neb. 465 (74 N. W. 959).

27. (1899.) In a suit for services rendered it is error to exclude testimony of a witness who has shown himself qualified and competent to testify to the character and value of the services. Cate v. Hutchinson, 58 Neb. 232 (78 N. W. 500).

Weight and sufficiency of evidence.

28. (1892.) Evidence in an action on an account held to sustain the finding and judgment rendered. Fransen v. Eller, 34 Neb. 664 (52 N. W. 284); (1887) Goodman v. Pence, 21 Neb. 459 (32 N. W. 219); (1889) Watte v. Wickersham, 27 Neb. 457 (43 N. W. 259); (1891) Conklin v. Graham, 32 Neb. 546 (49 N. W. 460); (1891) Houston v. Popperl, 32 Neb. 828 (49 N. W. 803); (1895) Gray v. Godfrey, 43 Neb. 672 (62 N. W. 41); (1895) Bushnell v. Chamberlain 44 Neb. 751 (62 N. W. 1114); (1899) Hubbard v. Seitz, 58 Neb. 351 (78 N. W. 620).

29. (1884.) About the 1st of December, 1881, one D. sent a money order for $3 to S. & Co. of St. Louis. A receipt for $300 was returned. D. alleged that on the same

day on which the money order was sent he forwarded to S. & Co. a draft for $300 which he had received in the spring of 1880. Held, That the evidence failed to show that the draft in question was sent. Shapleigh & Co. v. Dutcher, 15 Neb. 563 (20 N. W. 32). 30. (1888.) Evidence in an action on an account for services held to sustain a verdict for plaintiff. Brewer v. Wright, 25 Neb. 305 (41 N. W. 159).

31. (1893.) In an action on account for flour sold and delivered, a number of defenses were set up which the proof failed to sustain, the evidence sustains a verdict for the plaintiff. Reed v. Davis Milling Co., 37 Neb. 391 (55 N. W. 1068).

32. (1893.) In an action upon an account for goods sold and delivered a question arose as to whom the credit was extended. The defendant insisted that the credit was extended to a firm; and the plaintiff that it was extended to a member of the firm individually. The evidence discussed in the opinion held sufficient to sustain a verdict in favor of the plaintiff. Deranlieu v. Jandt, 37 Neb. 532 (56 N. W. 299).

33. (1895.) In an action for a bill of lumber, evidence that defendant ordered the same through a third dealer who has gone out of business, and had previously made plaintiff, dealers in lumber, his agent and plaintiff filled the order shipping the material to defendant who credited such third dealer with the amount due against a note made by the suposed seller, supports a verdict for plaintiff. Bushnell v. Chamberlain, 44 Neb. 751 (62 N. W. 1114).

34. (1903.) In an action on account for livery hire and drayage a verdict for plaintiff for $127 is sustained by the evidence. Matoushek v. Dutcher, 67 Neb. 627 (93 N. W. 1049).

Instructions.

35. (1888.) In an action on an account for wages, instructions as to an alleged settlement and, as a basis of a counterclaim, certain damage to machinery, held, proper. Brewer v. Wright, 25 Neb. 305 (41 N. W. 159).

36. (1894.) Instructions as to payment by note, in an action on an account, held to properly present the issues in the case. Howell Lumber Co. v. Campbell, 38 Neb. 567 (57 N. W. 383).

37. (1896. In an action to recover an account for personal services, instructions

examined, and held to propertly state the issues; and evidence examined and held to sustain the verdict. O'Brien v. Parsons, 49 Neb. 729 (68 N. W. 1020).

38. (1899.) Where, in an action on an account, payment is pleaded, it is proper to instruct the jury that they may consider evidence in regard to prior related transactions between the parties to aid them in determining whether the plea is sustained. Ottens v. Fred Krug Brewing Co., 58 Neb. 331 (78 N. W. 622).

Verdict.

39. (1893.) The evidence being in writing and practically undisputed as to the amount due the plaintiff, a verdict for a sum greatly less cannot be sustained. Porter v. Sherman County Banking Co., 36 Neb. 271; 40 Neb. 274 (54 N. W. 424; 58 N. W. 721).

40. (1897.) In an action for labor performed in the improvement of a highway upon request of one claiming to represent a principal having no legal existence, damages assessed in plaintiff's favor to the amount of $427.92 not excessive. Learn v. Upstill, 52 Neb. 271 (72 N. W. 213). Judgment.

41. (1888.) In an action on an account the items of the account had nearly all been furnished more than four years prior to the commencement of the suit; the plaintiff's testimony was to the effect that the debt had been contracted under a special contract providing for the payments to be made for a part of the material within thirty days after it was furnished, the remainder when defendant's dwelling-house was completed; the demand for that which had been furnished on the thirty days' credit was barred by the statute of limitations at the time of the commencement of the action. Held, That, if this testimony was correct, the district court erred in rendering judg ment for the whole claim. Ashby v. Washburn, 23 Neb. 571 (37 N. W. 267).

42. (1893.) Where the answer admits there is due the plaintiff a certain sum, much smaller than claimed in the petition, and all the averments of new matter in the answer are unequivocally denied by the reply, judgment must be for at least the amount admitted to be due. The allowance of costs being discretionary, none are taxed as incident to the above judgment, because of the, confused condition of said issues as presented in the district court. McConnell

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See, also, Account; Account, Action On. Nature and definition.

1. (1900.) An account stated is merely an agreement between persons who have had previous transactions, fixing the amount due as the result of an accounting. Jorgensen v. Kingsley, 60 Neb. 44 (82 N. W. 104).

2. 1896.) An account stated is an agreement between persons who have had previous dealings determining the amount due by reason of such transactions. Hendrix v. Kirkpatrick, 48 Neb. 670 (67 N. W. 759).

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3. (1904.) In stating an account, as in making any other agreement, the minds of the parties must meet, and the transaction must be understood by the parties as a final adjustment of the respective demands between them, and the amount then due. Haish v. Dillon, 71 Neb. 290 (98 N. W. 818). 4. (1886.) An account stated is agreement between persons who have had previous transactions, fixing the amount due in respect to such transactions. As distinguished from a mere admission or acknowledgment it is a new cause of action. It is not a contract upon a new consideration and does not create an estoppel, but establishes primà facie the accuracy of the items charged without further proof.

McKinister v. Hitchcock, 19 Neb. 100 (26 N. W. 705).

Express promise to pay.

5. (1880.) An account stated is an agreement between the parties to an account that all the items thereof are correct. In an action to recover the balance due upon such account, it is not necessary for the plaintiff to prove an express promise by the defendant to pay the same. Claire v. Claire, 10 Neb. 54 (4 N. W. 411).

6. (1896.) The rendering of an account between parties and agreeing upon the amount due as appearing therefrom will support an action for the balance thereby shown without an express promise to pay. Hendrix v. Kirkpatrick, 48 Neb. 670 (67 N. W. 759).

Fraud, mistake, and correction.

7. (1883.) A settled account is prima facie correct, and it will not be disturbed except for fraud or mistake in the settlement. But if fraud or mistake is shown the settlement will to that extent be considered as having been made upon mistake or imposition, and the omissions and mis takes will be corrected. Kennedy v. Good man, 14 Neb. 585 (16 N. W. 834).

8. (1886.) Proof that a banker concealed the real condition of a depositor's ac count and failed to credit him with certain

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