This account was offered in evidence by the plaintiff; it was ob jected to by the defendants, and the court sustained the objection. Upon motion of the defendant Hampton the court directed a nonsuit. The plaintiff excepted, and appealed to this court.

The paramount questions in this case are, did the district court err in refusing to permit the account to go to the jury, and in sustaining the motion for a nonsuit? By our statute a judgment of nonsuit may be entered by the court upon motion of the defendant, when upon trial the plaintiff fails to prove a sufficient case for the jury. When the parties to an account have examined it and have expressly agreed upon a certain sum of money as the balance justly due from one party thereof to the other, then such an account has become an account stated, and an action upon it is not founded upon the original items, but upon the balance ascertained by the mutual accounting of the parties. "Upon an insimul computassent the plaintiff is not obliged to give evidence of the articles. It is sufficient if he prove the account stated." Union Bank v. Knapp, 3 Pick. 96. The effect of an account stated is to establish prima facie the accuracy of the balance found due without other proof. The burden of proving that an account is stated or settled is upon the party making such allegations; but it is not always necessary, in proving an account stated, to show an actual examination of the items of account or demands of the respective parties thereto, or that there has been an express assent or agreement on the part of the party sought to be held liable, upon an alleged account stated, that it is correct. This may be implied from circumstances. If an account be presented for payment by one party thereto to the other, and the other party, upon an examination of it, and after a reasonable time has elapsed, makes no objection to it, it may be legitimately presumed that he was satisfied with it as presented; and this presumption is so strong that a suit can be maintained upon the account as an account stated, without proof other than that the account was presented with a demand for payment; that reasonable time and opportunity have passed since its presentation for a proper examination of it; and to make objections to it if there be any. Lockwood v. Thorne, 11 N. Y. 170. The same rule applies where a party to an account sends it for payment to the other by mail, if the party to whom it is sent does not, after a reasonable time has passed, express any objection to it, his silence, unexplained, is an implied admission that he has none; that the account is correct, and truly, though not conclusively, stated. Terry v. Sickles, 13 Cal. 427. But it is not an estoppel; its effect is to establish prima facie the accuracy of balance due as stated in the account without further proof. Lockwood v. Thorne, 18 N. Y. 285. But in cases where there is no claim that the alleged account stated is the result of an express assent or agreement to its correctness by the person sought to be charged thereby, such person must in terms be a party to the account, or the grounds upon which it is sought to hold him as a debtor should

be clearly made known to him, and a demand for payment should be made. If anything less than this will operate as an admission of the correctness of an account which does not contain as a party thereto the name of the person to whom it may be sent or otherwise delivered, and such admission as a prima facie liability for its payment, the law by these means is prostituted to purposes not contemplated by its father, who gloried in it as "the perfectness of human reasoning."

In this case the account, "Bicknell & Morrison in account with L. Benites," containing about 250 items, was placed in an envelope and sent by mail to Hampton, without any accompanying letter or statement expressing why or for what purpose it was sent to him, and without any demand or request for its payment. The firm name of Bicknell, Morrison & Co. nowhere appears in the account; the name "Hampton" once, and in an item as follows: "To balance due on settlement charged to Bicknell, Morrison & Hampton, $350.99." There is nothing in this record showing or attempting to show what the subject matter involved in the settlement was, who it was with, or the parties to the account, or why this balance was charged to Bicknell, Morrison & Hampton, or why this balance should be charged to the defendant company of Bicknell, Morrison & Co. Nor does the record show any claim or attempt to prove that Bicknell, Morrison, and Hampton were, or that they constituted, the defendant firm of Bicknell, Morrison & Co., or that defendant Hampton knew that the plaintiff intended to hold him on this account as partner of Bicknell and Morrison or otherwise, or that this account was sent to him by the plaintiff, or that the plaintiff at that time did or had at any time claimed that Hampton was indebted to him as partner or otherwise, by reason of any of the transactions represented by this account. Neither does the record contain anything tending to show how long time this account was on the way between Stockton and Frisco, or how frequently the mails were transferred from one of these places to the other, and of these matters we can take no judicial notice. The record also fails to inform us when this suit was commenced; for aught that appears it may have been commenced on the day, day after, or day before, Hampton received the account; whether a reasonable time after Hampton had received the account had elapsed or not we cannot tell; but it is certain that the record does not show that it had. Judge STORY, in his Equity Jurisprudence, section 520, says: "Between merchants at home, an account which has been presented and no objection made thereto after the lapse of several posts, is treated under ordinary circumstances as being, by acquiescence, a stated account." There is no evidence that even one mail had been conveyed from Frisco to Stockton after the receipt of the account by Hampton, and before the action was commenced; and therefore the record fails to show the existence of the facts and circumstances which must exist before the implication of law arises that the account is correct, and agreed to as correct by Hampton. The plaintiff having failed to v.3,no.2-14

prove the existence of the material facts necessary to the existence of an account stated at the time of the commencement of this action, there was no error on the part of the court in refusing to permit it as such to go to the jury. And it may further be said that, upon trial in the court below, the judge undoubtedly had the papers of the case before him, and from them might, and probably did, know the date of the commencement of the action. It is but just and fair to presume that he did. We cannot say he did not, and error is not to be presumed. It must be affirmatively shown. The date of the commencement of the action, the length of time between the receipt of the account by Hampton and the commencement of the suit, and the number of the mails between Frisco and Stockton during this time. may all have been in evidence before the court, and the ruling of the court correct on the facts, or they may not have been in evidence. If they were not, there was a lack of evidence of facts which must have existed, or the account did not become an account stated. In the absence of any testimony on the subject, we cannot assume there was error in the rulings of the court, either in refusing to allow the account to be read to the jury or in sustaining the motion for a nonsuit. Wiggins v. Burkham, 10 Wall. 129.

The judgment of the district court is affirmed.

HUNTER, C. J., concurs.

EMERSON, J., dissents.

(7 Colo. 212)

SUPREME COURT OF COLORADO.

BUCK v. WEBB and others.

Filed February 29, 1884.

The rule of construction, as regards decrees, is to consider the whole decree in cornection with the purpose of the court in relation thereto, and also the deeds given in pursuance of such decree, and to interpret them so as to give effect, if possible, to every word therein and let none be rejected.

The interests of persons not parties to the suit cannot be injuriously affected by the decree therein; but courts of equity have the power to protect by reservation or limitation in their decree the rights of individuals who appear to be interested, though they be not parties to the action.

Where a company holds property, with a secret trust in favor of a second party, a decree may award a reconveyance of the property to such party, and at the same time make it subject to the rights of those creditors who, in ignorance of such trust, have given credit to the company by virtue of the apparent holding of such property.

Such creditor of the company, in a suit against it, may properly make the company's grantee a party, and in the one action enforce the lien, which, according to the above-named decree, rests up such grantee's property.

Error to the county court of Gunnison county.

Louis Boiset, for plaintiff in error.

Shackelford & Karn, for defendants in error.

HELM, J. The complainant in this case avers that in 1880, Webb, one of the defendants in error, brought suit in the district court, and obtained a decree recognizing and enforcing a secret resulting trust upon certain lands and other property held by the Good Enough Milling & Mining Company, the other defendant in error. That said decree required the company to convey to Webb title to the property therein described, but that the decree and also the deed afterwards executed in pursuance thereof further provided that Webb should take the property subject to the payment therefrom "of any and all just debts against the said The Good Enough Milling & Mining Company, which may be determined by due process of law to be preferred over the claim of said William H. Webb in and to the said land and other property." The complainant further alleges that before the rendering of said decree the company became indebted to plaintiff's assignor, and still remain indebted to plaintiff, in the sum of over $1,100 for goods, wares, and merchandise sold and delivered at its instance and request; that at the time of such sale and delivery neither plaintiff nor his grantor had any notice or knowledge whatever of the existence of defendant Webb's said secret trust; that the

company was then in possession, and the apparent owner, of the property; and that when this suit was commenced the company was wholly insolvent, and had no effects of any kind whatever.

Each of the defendants filed a demrrer to the complaint on the grounds-First, that the facts stated do not constitute a cause of action; second, that there is a defect or misjoinder of parties defendants; and, third, that causes of action are improperly united. These demurrers were sustained and judgment rendered for defendants. We are now asked to reverse this judgment. The truthfulness of the foregoing averments in the complaint is of course admitted; and it is apparent that plaintiff must look to the property conveyed to Webb, or lose his entire debt. Whether he may do so or not depends upon the construction we shall give to the reservation above mentioned in the decree and deed. No protection of bona fide mortgage, judgment, or other existing incumbrance or lien, was needed in the decree; no action taken or conclusion reached in that proceeding could interfere with the rights of such prior incumbrances. If, therefore, we say that this provision of the decree refers to this class of obligations, we declare that the court did something which was entirely unnecessary; that it performed the useless task of protecting rights which needed no protection. To take this view is practically to admit with counsel for defendant in error that the condition in question is merely surplusage. But under a well-known rule of construction, it is our duty to give meaning and effect to this provision if we can reasonably do so; the whole of the decree and deed must be considered together with the purpose of the court in connection therewith; and both instruments must be so interpreted as "that every word (if it may) may take effect, and none be rejected."

The object of the court in rendering the decree, as we understand it from the complaint, was to protect the interest of Webb arising out of his equitable rights in the property. But the company had for some time been transacting business, and it had incurred debts, among which was that of plaintiff in error. The trust recognized and enforced by the court not only arose by implication of law, but was also secret. It was clearly the province of a court of equity to guard so far as possible the company's creditors who became such without notice of the secret claim or interest of Webb. This we believe the district court endeavored to do; that portion of the decree under consideration was doubtless intended to protect the interests of just such creditors as plaintiff in error. The phraseology is not the best that might have been used, but its meaning is reasonably plain. The "preference" given to "all just debts" is such a superiority or advantage as a court should award a bona fide creditor over a secret and hidden equity of which he knew nothing, against the property of his debtor.

But counsel for defendant in error argue that the rights of persons not parties or privies to a suit, cannot be affected by a judgment or