Appeal from the Municipal Court of Chicago; the Hon. GEORGE L.
QUILICI, Judge, presiding. Judgment reversed and cause remanded
JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT. Rehearing denied and opinion modified May 6, 1958.
This is an appeal from a judgment on the pleadings entered in favor of plaintiff and against defendant ordering defendant to pay plaintiff $192,206.18, a sum based on the finding of an account stated between the parties for $183,800, together with the finding of an additional indebtedness in the amount of $8,406.18. Several questions are presented.
Plaintiff is a brewery; defendant a wholesale distributor of beer. The pleadings reveal a history of fifteen years of dealing between the two companies which has culminated in the various charges and countercharges that comprise this lawsuit. The facts are presented solely by the pleadings.
Plaintiff's original statement of claim alleged that defendant was indebted to it in the sum of $192,206.18. The defendant then filed a motion to make the statement more definite and certain or in the alternative for a bill of particulars. Plaintiff filed an amended statement of claim, alleging in substance as follows: That from January, 1941, until July, 1956, defendant was a distributor of plaintiff's beer in the Chicago area; that on or about March 1, 1955, plaintiff and defendant accounted together for the purpose of determining the amount due plaintiff from defendant for the sale and delivery of beer up to and including February 28, 1955; that plaintiff and defendant continued to have dealings subsequent to March 1, 1955, during which time defendant acknowledged its indebtedness to plaintiff in the amount of $185,736.94 and accepted a credit of $2,789.59 upon transactions between March 1, 1955, and December 31, 1955; that from January 1, 1956, to July 19, 1956, plaintiff made numerous additional sales and deliveries of beer to defendant for which defendant is indebted to plaintiff in the sum of $8,406.18; that defendant made payments to plaintiff on the account stated of $185,736.94 in the total sum of $1,936.94; that plaintiff made repeated demands for payment which were refused by defendant; wherefore plaintiff prays judgment in the sum of $192,206.18, plus interest.
Attached to the statement of claim as exhibits A, B, C and D are: Plaintiff's statement of defendant's account as of March 31, 1955; a statement from a firm of certified public accountants indicating a balance due plaintiff from defendant of $185,736.94, and bearing a notation by one David P. Fisher for defendant that this amount represented a correct balance; plaintiff's statement of account crediting defendant with payments totaling $1,936.94 against the aforementioned balance of $185,736.94; and fifty-three photostatic copies of ledger sheets purporting to show purchases, payments and credits between the parties for the period from January 1, 1956, through July 19, 1956.
Defendant in its answer admits that commencing January 2, 1941, and until July 19, 1956, it operated as a distributor of plaintiff's beer in the Chicago area; denies that on or about March 1, 1955, plaintiff and defendant accounted together for the purpose of determining the amount due plaintiff from defendant for the sale and delivery of beer up to and including February 28, 1955, and further denies that upon any accounting it was mutually determined and agreed by the parties that as of February 28, 1955, defendant was indebted to plaintiff in the sum of $185,736.94, or in any other sum; admits receiving the accountant's statement marked exhibit B and attached to the amended statement of claim, but denies that said exhibit was, or was intended to be, a statement of account between the parties; admits that it made payments in cash to plaintiff during March, May, June, and July, 1956, but denies that there was, or now is an unpaid balance due and owing of either $185,736.94, or $183,800, and denies further that a repeated demand was made for the payment of either amount; denies that it is indebted to plaintiff in the sum of $8,406.18 upon sales and deliveries of beer during the period January 1, 1956, to July 19, 1956; denies that the defendant has been requested to make payment in the sum of $183,800, or in any other sum, and denies further that said sum, or any other sum is the balance due on any account stated, or that there is an account stated between the parties.
The answer also contains eight separate allegations of affirmative defense. Six are to the effect that plaintiff's action is barred by the Illinois Liquor Control Act, and two to the effect that plaintiff's action is barred by an agreement between the parties. The contention with regard to the Liquor Control Act is that Section 4 of Article VI (Ill. Rev. Stat. 1957, ch. 43, sec. 122) specifically forbids any action by a brewer against a distributor to recover the purchase price of beer where the brewer has allowed the distributor to postpone payment of the purchase price for a period in excess of fifteen days. The alleged agreement between the parties involves a contract for special services to be rendered plaintiff by defendant in return for which services defendant was allowed the privilege of deferring payment for beer received from plaintiff unless, and until, defendant's business showed a substantial profit.
Plaintiff filed a motion for judgment on the pleadings. This was argued, but before decision defendant filed a motion to amend its answer with two additional allegations of affirmative defense and two counterclaims, one for breach of contract, and an alternative claim in quasi-contract, both founded on the special services allegedly performed for plaintiff by defendant. This motion was denied. Judgment was granted on the pleadings and defendant appeals therefrom.
Both parties have presented extensive interpretations of the particular rules of law which each considers applicable to a determination of this appeal. The factual background as revealed by the pleadings is, at best, vague and imprecise. It is the primary contention of plaintiff that the pleadings support the findings of an account stated and additional indebtedness, neither of which is barred by the Liquor Control Act or the alleged contract for special services. Defendant alleges as error three separate grounds: (1) That the Liquor Control Act expressly forbids the action; (2) that the alleged contract constitutes a valid affirmative defense; and (3) that the trial court erred in granting plaintiff judgment on the pleadings because the answer averred explicit denials of essential allegations of the amended statement of claim. An analysis of the facts as shown by the pleadings indicates the following legal issues: (1) Whether or not the pleadings support the findings of an account stated; (2) whether or not the pleadings support the finding of an additional indebtedness for $8,406.18; and (3) whether or not the Illinois Liquor Control Act bars this action.
To resolve these issues we must first decide whether the trial court should have allowed defendant to file its proffered amendments to its answer to be considered a part of the pleadings. Plaintiff's motion for judgment on the pleadings was pending and there had been no decision by the trial court when defendant sought leave to amend its answer. This motion raised the sufficiency of the pleadings, as a matter of law, and put in issue both plaintiff's right to relief and defendant's right to a hearing on the merits. Milanko v. Jensen, 404 Ill. 261 (1949). Amendments to the pleadings may be allowed on just and reasonable terms at any time before final judgment. Ill. Rev. Stat. 1957, ch. 110, sec. 46 (1).
An examination of the profferred amendments discloses that they properly pertained to the motion then pending before the trial court. To reach a decision, it was essential that the court consider all contentions which were a part of the defense. We are of the opinion that under the circumstances the trial court erred in denying defendant's motion for leave to file its amendments. This conclusion, however, pertains only to plaintiff's motion for judgment on the pleadings. If a motion to strike is made by plaintiff on remandment, the trial court will have to consider that motion on its merits.
As to the first issue, an account stated is an agreement between two parties which constitutes a new and binding determination of the balance due on indebtedness arising out of previous transactions of a monetary character, containing a promise, express or implied, that the debtor shall pay the full amount of the agreed balance to the creditor. The State v. Illinois Central R.R. Co., 246 Ill. 188, 241 (1910); Chase v. Bramhall, 343 Ill. App. 171 (1951); Pure Torpedo Corp. v. Nation, 327 Ill. App. 28 (1945); Dean & Son v. W.B. Conkey Co., 180 Ill. App. 162 (1913). The agreement must, of course, manifest the mutual assent of both the debtor and the creditor, although such assent may be inferred from the retention by one of the parties of a statement of account, rendered by the other, for an unreasonable time and without objection. Pure Torpedo Corp. v. Nation, supra; Dean & Son v. W.B. Conkey Co., supra; 6 Williston on Contracts, sections 1863, 1864; Restatement of Contracts, vol. 2, sec. 422.
In the instant case the answer of defendant expressly denied the mutual assent of the parties. Plaintiff's exhibit B, attached to the statement of claim, is a statement of account submitted to defendant by a firm of certified public accountants. It bears a notation by one David P. Fisher, for the defendant, containing an objection to the stated balance and a correction thereof. The proffered amendments to the answer of defendant expressly deny that Fisher had the authority to render an account stated for the defendant corporation. It is alleged that Fisher was a bookkeeper for defendant. On this point the law of Illinois is not settled. It has been held that the president and the secretary of a corporation are presumed to have the authority to agree to an account stated for the corporation. Albert Pick & Co. v. Slimmer, 70 Ill. App. 358 (1897). It has been held that, in the absence of evidence that a bookkeeper had the authority to change or abrogate the provisions of a contract of employment, an account of commissions due the employee did not meet the requirements of an account stated. Peterson & Co. v. Wachowski, 86 Ill. App. 661 (1899). Where the creditor's bookkeeper prepared and mailed a statement of account to the debtor, and there was no evidence of objection by the debtor to that statement, there was sufficient presumption of assent by the debtor to present a question for the jury as to whether or not the statement constituted an account stated. Bee v. Tierney, 58 Ill. App. 552 (1895). These cases appear to support the following general statement of the law from other jurisdictions, 1 Am. Jur., Accounts and Accounting, sec. 24, p. 278:
"An account may be stated by the agents of the parties thereto, duly authorized for the purpose. It is clear, however, that a person not authorized to act for a debtor or creditor in the stating of an account cannot bind the alleged principal. It is impossible to lay down general rules as to the authority of particular agents or employees to act in the stating of an account. For example, it cannot be said that a president, a secretary, a treasurer, or a bookkeeper has or has not authority, as such, under all circumstances, to assent to an account stated, since an agent's authority to do a particular act is not wholly dependent upon the name or title by which he is designated. The rendition by a party's clerk or bookkeeper of an account showing a balance due the person to whom the account is ...