Page:Federal Reporter, 1st Series, Volume 5.djvu/501

MAEYB V. STEOUSE 489 �ing it wlien the debtor refuses to abide by the verbal agree- ment. �In such case, however, the agreement being fair and per- fectly understood by the party charged, such interest may be included in the balance agreed to upon stating an account. There is nothing in that opposed to good morals, or to the policy of the law in this state. And since the stating of the account alters the nature of the debt and amounts to a new promise, (2 Greenl. Ev. § 127,) and it is not necessary to prove the items of the account, but simply the assenl, express or implied, of the debtor to the balance stated, a recovery may be had upon such an account unless it is successftiUy impeached for fraud or mistake. Under the circumstances of this case it appears to me that the balances struck in the "broker's pass-book" must be regarded, upon settled princi- ples of law, as accounts stated. The book is kept for the express purpose of showing the customer how his account stands. It bas on the debit side charges against Stiouse for stocks bought, commissions, telegrams, assessments, and in- terest. On the credit side appear the proceeds of stocks sold, money paid in on account, and dividends coUected. The course of business in the brokers' office was to balance ail stock accounts at the end of each month. The balance was carried forward as the first item of the next month's account. �Interest on ail advances during the month, as well as on the balance brought forward from the preceding month, was charged at the rate of is per cent, per month at the expiration of each month, and wont into the balance struck. The pass- book is a copy of the broker's ledger. Whenever it was^ brought in by the defendant it was written up by copying inta it the entries from the ledger, and then returned to him, he having at ail other times possession of the book. The first balance was struck August 31, 1874, and the last July 31, 1875. Every account and every balance made ' contains a charge for interest at the rate of 2 per cent, per month. In charging the item for interest it is not stated to be at the rate of 2 per ce'nt., but the amount shows that to have been the rate. No objection was ever made by the defendant to this. ����