W. 580; Main Co. v. Griffin, 141 N. C. 43, 53 S. E. 727; RusseП v. Murdock, 79 Iowa, 101, 18 Am. St. Rep. 348, 44 N. W. 237; Davis v. Case Co. (Ky.), 80 S. W. 1145. The contracts considered in these decisions were very different from that in hand. They provided that notice to the vendor, etc., of defects discovered, etc., should be given either at once or within a reasonable time. Reference to the quoted provision from the contract before us will demonstrate the entire lack of application here of what was held in the decisions noted. The witness Newly had qualified as an expert machinist with reference to the setting up and operation of engines and boilers. He was, hence, properly permitted to give it as his opinion that the engine and boiler were properly set up.

As stated before, the issues in the case were for the jury, each of them finding support in tendencies of the evidence. The weight of the evidence is not so palpably opposed to the verdict as would warrant us, under the oft-written rule here, in disturbing it. There was no error in refusing the affirmative charge to the defendant, nor in overruling its motion for a new trial upon the ground directed against the weight and sufficiency of the evidence. Our ruling in construction 359 of the contract, as quoted, justifies the action of the court in refusing to defendant special charges 3, 5 and 6.

Special charge 4 is, in effect, the affirmative charge for the defendant, and proceeds on the theory, and so states, that no averment of injury appears in the complaint. If this were true, the objection should have been taken to the pleading, which was not done. The counts are substantially in code form, and were hence sufficient.

Special charge 2 refused to treated. It probably has other note that it undertakes to select of fact in the evidence.

defendant was properly so vices; but it will suffice to and emphasize one element

There is no error in the record, and the judgment is affirmed.

Dowdell, C. J., and Anderson and Sayre, JJ., concurred.

Damages cannot be Recovered by the Buyer for a Breach of Warranty in the sale of machinery when he has failed to give notice of the failure of the machinery to fill the warranty within the time prescribed by the contract of sale, and has continued in its possession and use after the term prescribed for its return, especially when by the terms of the contract this operates as conclusive evidence of the fulfillment of the warranty to the satisfaction of the buyer: Russell & Co. v. Murdock, 79 Iowa, 101, 18 Am. St. Rep. 348. See, also, Fahey v. Esterley Machine Co., 3 N. D. 220, 44 Am. St. Rep. 554; Aultman & Taylor Co. v. Gunderson, 6 S. D. 226, 55 Am. St. Rep. 837; E. F. Main Co. v. Field, 144 N. C. 307, 119 Am. St. Rep. 956.

JASPER TRUST COMPANY v. LAMPKIN.

[162 Ala. 388, 50 South. 337.]

ACCOUNTS STATED.-It is not Essential to an Account Stated that there should be mutual or reciprocal accounts. But if one party holds an account against the other, and a statement is made showing the amount due on a particular day, and the same is agreed by the other party to be correct, and there is a promise, actual or implied, to pay it, this amounts to an account stated between them. (p. 34.)

ACCOUNTS STATED-Promissory Notes-Limitation of Actions. Where the holder of promissory notes, after calculating the interest, states to the other party the amount due, and the latter assents to the correctness of the amount, this does not constitute an account stated between them so as to authorize a suit thereon, instead of on the notes, after they have been barred by the statute of limitations. (pp. 35, 37.)

ACCOUNTS STATED-Promissory Notes.-The Mere Calculation of the amount due on promissory notes cannot merge the notes into an account stated. (p. 36.)

ACCOUNTS STATED-What Does not Constitute.-An account stated necessarily refers to a past transaction, and the mere adding of the amount paid at that time cannot constitute the entire amount of an account stated. (p. 37.)

ACCOUNTS STATED.-The Basis of Recovery on an Account Stated is a promise, either express or implied, to pay the money. (p. 37.)

Action by Jasper Trust Company against T. P. Lampkin. A verdict for the defendant was directed, and the plaintiff appeals. The written instrument referred to in the opinion is as follows:

"For and in consideration of the sum of seven forty eight, and seventy-seven, we, N. M. Lampkin and T. P. Lampkin, her husband, do hereby assign and transfer unto the Jasper Trust Company, the judgment obtained by N. M. Lampkin against H. J. Gravelee, D. W. Gravelee, and D. H. Gravelee, on the 20th day of February 1905 for $255.81, in the circuit court of Walker county, Alabama, subject to the order given to B. Odom on said judgment, and also all the right, title and interest of said N. M. Lampkin in and to a certain claim now pending in the chancery court of Walker county, Alabama, wherein N. M. Lampkin is complainant, and H. J. Gravelee is respondent, in which cause the original bill is filed on the 3rd day of April, 1894, and a decree rendered therein on the 26th day of April, 1895, and also all the claim of the said N. M. Lampkin in and to the promissory note attached as an exhibit to the original bill, in said cause. The transfers of said judgment and said claim being also subject to the lien of Coleman

Am. St. Rep., Vol. 136-3

& Bankhead, attorneys for the fees in said cause. When the said Jasper Trust Company collects the money on said judgment in the circuit court, and said claim in the chancery court, after satisfying the said sum of $748.77 with the interest thereon, up to the date of the collection hereof, the said Jasper Trust Company will turn over to the said N. M. Lampkin the excess.

Dated and signed June 1, 1895, by N. M. and T. P. Lampkin,

W. C. Davis and A. F. Fite, for the appellant.

Bankhead & Bankhead, for the appellee.

390 SIMPSON, J. All of the counts in the complaint were withdrawn, except the seventh, claiming on an account stated on the first day of June, 1895, and the ninth, for money loaned by the plaintiff (appellant) to the defendant (appellee) on the same day. The facts are that, on said first day of June, 1895, the defendant was indebted to said plaintiff by four promissory notes, past 391 due, amounting to $574.98, and by an arrangement between plaintiff and defendant, the defendant and his wife assigned to the plaintiff a judgment and a decree which belonged to the wife, by a written instrument, which is set out in the statement of this case by the reporter. Defendant's notes were delivered up to him as canceled, and the plaintiff paid to the defendant the difference between the face value of said judgment and decree and the amount due on said notes. On November 28, 1898, defendant's wife filed a bill in the chancery court to set aside the said assignment and transfer of said judgment and decree, on the ground that it was void under the married woman's law of the state, and the said court finally rendered a decree granting the relief prayed.

At the time of the commencement of the present suit the original notes, if in existence, would have been barred by the statute of limitation of six years, so the theory of the plaintiff is that the transaction between plaintiff and defendant amounted to an account stated, on which it is entitled to recover. The statute of limitation of six years was pleaded, as well as the general issue. An account stated is correctly defined in the case of Ware v. Manning, 86 Ala. 238, 5 South. 682, as copied in the brief of appellant. This and other cases establish the proposition that it is not necessary that there should be mutual or reciprocal accounts; but if one party holds an account against the other, and a statement of the same is made showing the amount due on a particular day, and the same is agreed by the other party to be correct, and there is a promise, either actual or implied, to pay the same, it amounts to an account stated between the parties: Ware v. Dudley, 16 Ala. 742; Loventhal v. Morris, 103 Ala. 332, 15

South. 672; 2 Mayfield's Digest, p. 24 et seq.; 1 Cyc. 364; 1 Am. & Eng. Ency. of Law, 2d ed., 437.

392 The first proposition which presents itself is, where one person holds one or more promissory notes against another, and after calculating the interest states the amount due to the other, and he assents to the correctness of the amount, does that constitute an account stated between them, so as to authorize the creditor to sue and recover on an account stated, in place of suing on the note? At an early day in England. it was held that, where a debt was evidenced by an instrument under seal, a recovery could not be had in an action of assumpsit. One reason seems to be that there is no consideration for the new promise, because the party is already bound by a higher evidence of debt to pay, and the court says: "There must be at least some additional consideration, such as items, for instance, foreign to the articles of agreement, introduced into the account and included within the promise, in order to take the claim founded upon it out of the operation of the agreement or contract under seal; otherwise, the plaintiffs below must be confined to their action of covenant, founded upon the articles of agreement, for the recovery of their claim": Gilson v. Stewart, 7 Watts, 100. It was also decided that "where a sum of money is secured by a deed, and a balance is struck for the purpose of ascertaining how much remains due thereon, and the obligor admits the correctness of the account and promises to pay it, debt or simple contract on an account stated will not lie, but the action must be brought on the specialty," the court saying: "The defendant is charged with nothing but the money secured by the deed. There is no consideration for the suggested new liability, except the ascertaining how much remains due on the deed. It is a perversion of language to speak of this as an account stated. It is merely a process adopted for the purpose of ascertaining how 393 much of the original debt has been discharged, and all which is really done is to make out to what extent the defendant remains liable upon the deed": Middleditch v. Ellis, 2 Ex. 623.

In a case in Wisconsin, where there was evidence of a special contract, and the court had charged the jury on the admission of the correctness of an account presented by silence, the supreme court, while holding the charge misleading in other respects, said: "Aside from the fact that this claim is not a matter of book account, or of an account rendered, or bill presented, and the subject of a special contract, and such a principle of law has no application to it, it was unfair," etc.: Valley Lumber Co. v. Smith, 71 Wis. 304, 5 Am. St. Rep. 216, 37 N. W. 412. In a case where A gave bond to B to pay a sum of money, with annual interest, A, as agent of B, holding the bond, annually computed interest and entered

the amount due on the bond. At the end of the agency an account was stated between A and B, based on these annual statements. Held, that there was no sufficient agreement to pay compound interest, and "if there was anything due upon the bond, it could not be recovered in an action as upon an account stated, but that the action should have been on the bond," the court saying: "When a sum of money is secured by a deed, and a balance is struck for the purpose of ascertaining how much remains due thereon, and the obligor admits the correctness of the account and promises to pay it, an action will not lie on this account or promise, but the action must be brought on the security. A simple contract is merged in a bond, covenant or other contract, by deed or record; but the greater security is not merged in a lesser": Young v. Hill, 67 N. Y. 162, 23 Am. Rep. 99.

394 It is true that these decisions relate mainly to matters of pleading and also to sealed instruments; but we think the principles are applicable to show that a mere calculation of the amount due on promissory notes cannot merge the note into an account stated. An account stated must still be an account, and the origin of the action shows that it was not intended to be applied to a case like the one now under consideration. The original action was called "insimul computassent," which means "they accounted together," and it was averred "that the parties had settled their accounts together, and defendant engaged to pay plaintiff the balance": Black's Law Dictionary. Evidently, when there is no indebtedness except one or more promissory notes, the promisor is as firmly bound to pay the amount, which is definitely fixed by the note, as he could be by any implied promise; also there is no account for them to settle together. Each one with his pencil can ascertain at any moment just what is due, and the mere affirmation of what they both know and are already bound to cannot form a new contract. Besides, section 4850 of the Code of 1907 provides that "no act, promise or acknowledgment is sufficient to remove the bar to a suit created by the provisions of this chapter, or is evidence of a new and continuing contract, except a partial payment, made upon the contract, by the party sought to be charged, before the bar is complete, or an unconditional promise in writing, signed by the party to be charged thereby." A stated account, if it is anything, is a new and continuing contract, and it seems that this is the contingency that the statute is intended to provide against. It is true that, from the wording of the first part of the section, it might be liable to the construction that it was referring only to removing a bar which had already taken place; but the other wording shows that 395 it is referring to acts both during the running of the statute and after the bar has been completed. A "continu