LAMALERE v. CAZE, 14 F. Cas. 964

BY THE COURT. The law being admitted, there can be no doubt in this case. Even if the-evidence proved more clearly than it does, that the defendant acknowledged the balance due the plaintiff to be the 1,100 dollars, after deducting the 100 dollars, this is not a balance upon a settled account; for, to constitute such an account, all the parties must consent to it;’ all must be bound by it, or none are. This consent must be either express or implied.

X am inclined to think, that if, after dissolution, one partner were to state the account, and send it to the other, who should by his conduct show his acquiescence, by retaining it for a considerable time, without objections, that he might be bound by that statement, as well as the other, and that this action for the balance, might then be maintained.

But, in this case, the plaintiff never did assent to the balance, as stated by the defendant, but on the contrary, claimed in this action more than the 940 dollars, and much more than the jury supposed to be the balance; which shows that the balance was not struck, so as to bind both parties. The action, then, cannot be sustained. Nonsuit awarded. [For another ease between the same parties, see Case No. 8,002.]