PRATT, J.

No question seems to have been made in the court below, in regard to the legal effect of an account stated. It was assumed that if an account had been stated between the parties, the plaintiffs were precluded from showing that it was incorrect. The point of litigation in the Supreme Court seems to have been, whether an account had in fact been stated. It was therefore to this question of fact that the evidence was directed, and the question now for our determination is, whether the evidence offered and excluded upon the trial was relevant and competent upon this issue of fact.

In stating an account, two things are necessary: 1st. That there be a mutual examination of the claims of each other by the parties; and 2d. That there be a mutual agreement between them, as to the correctness of the allowance and disallowance of the respective claims, and of the balance, as it is struck upon the final adjustment of the whole account and demands on both sides. The minds of the parties must meet upon the allowance of each item or claim allowed, and upon the disallowance of each item or claim rejected. They must mutually concur upon the final adjustment, and nothing short of this in substance will fix and adjust their respective demands as an account stated.

But in proving an account stated, it is not necessary to show an express examination of the respective demands or claims of the parties, or an express agreement to the final adjustment. All this may be implied from circumstances. If the account be rendered by one party, and the other party, upon examining it, makes no objection, an inference might legitimately be drawn that he was satisfied with it, as rendered. So, also, if the account should be made out by one party and transmitted to the other party by mail, and the latter should omit to communicate objections to the party rendering the account within a reasonable time, an inference might be drawn that he was satisfied with it. Such omission to object would therefore be legitimate evidence in proving an account stated. There is no arbitrary rule of law which renders an omission to object in a given time equivalent to an actual agreement or consent to the correctness of the account thus rendered; but it is merely competent evidence, subject to be rebutted by circumstances from which counter inferences may be drawn. Thus, if it should appear that the party to whom the account was rendered was absent from home, that would of itself account for the omission, and no inference could be drawn that he was satisfied with the account. So, other circumstances might be shown, which would satisfactorily account for the omission to object in a given time. If one party receiving such account lived at some distance from the other party, and was expecting to see him within a few days, that might satisfactorily account for omitting to transmit immediately his objections by mail. Again, the expected meeting of the parties might be prevented or delayed by some unforeseen casualty, which might extend it from a few days to as many weeks, even months, and thus, what in the absence of knowledge of all the circumstances might appear a very extraordinary and unreasonable delay, with such knowledge, would be satisfactorily accounted for.

So, the natural inference to be drawn from an omission to make objection, might be rebutted by proof of the course of dealing between the parties, or of some understanding between them that no technical defaults should be insisted upon. In fine, as the omission to object to the account rendered, raises merely an inference that the party is satisfied with it, and that he means to have his silence understood as an expression of his concurrence therewith, any circumstances calculated to rebut such inferences, or to raise counter inferences, are clearly competent evidence to be submitted to the jury, in order that, with a knowledge of all the circumstances of the case, they may form their conclusion of the actual intention of the parties.

And, as the minds of both parties are supposed to meet and concur, it must necessarily be competent to show how the party rendering the account understood the transaction. If the evidence should show clearly that he did not understand that there had been any final adjustment of their respective demands between them, it would be strange, indeed, if the courts should disregard the understanding of the parties themselves, and decree an adjustment between them contrary to their own understanding in the matter.

We come now to the case at bar. The plaintiffs, by drawing for and receiving payment of the precise amount of the balance, as shown by the account rendered by the other party, did an act from which, in the absence of other circumstances or acts on their part, the other party had a right to infer that they were satisfied with the account and assented to its correctness. This inference would undoubtedly be strengthened by the length of time which should elapse before objections were interposed. Upon the former trial, it did not appear that the correctness of the account was questioned at all until the suit was commenced, some nine months after the draft for the balance was drawn and paid. Allowing so long a time to elapse without objection, together with the fact that the plaintiffs had received the balance, was certainly strong evidence of consent on their part to the correctness of the account. Whether the point was so raised in that case as to present a question of law for the action of this court, it is not necessary now, perhaps, to inquire. If the case had been tried by a jury, and the court had been asked to instruct the jury upon the effect of the evidence, or if the facts had all appeared in the plaintiff's case, and a motion for a nonsuit had been made, the ruling of the court against the defendants might have presented a question of law. But, in this case, the first trial was before referees, and they found a general report for the plaintiffs. Whether the most that could be said in such a case, was not that their report was against the evidence, is not a question now before us. The court seems to have decided that it was a question of law, not of fact. There is nothing in that decision, however, which would preclude the plaintiffs from showing upon the second trial that they did, in fact, object within a reasonable time, or any legitimate excuse for not objecting, or any admission on the part of the defendants that the account had never been deemed adjusted so as to constitute an account stated by either party.

The plaintiffs offered to show that on their first visit to New York, after the account was rendered, they did make an objection to the allowance of the item in question, and that no claim was made that the matter had been adjusted. Now, whether the desire on the part of the plaintiffs to see the defendants and discuss the subject of the item with them personally, was a sufficient explanation of their omission to transmit their objections by mail, was a question, it seems to me, entirely for the jury, and not for the court. It was for them to draw inferences from the conduct of the parties, and upon an examination of all the facts to declare what that conduct was designed to express.

It was also for them to ascertain how it was understood by the other party. The acts and declarations of the defendants, therefore, it seems to me, were clearly competent evidence upon this point. If the evidence showed that the disputed item was the subject of frequent discussions between the parties, and that no claim was ever made on either side that it had been settled and adjusted at that amount, the jury would have the right to find that the account had not in fact been settled or adjusted. Indeed, they might infer that the necessary objection had in fact been interposed, or that there was some arrangement or understanding between the parties that it should not be necessary to make objections at the first opportunity. Upon the whole, therefore, I am satisfied that the evidence offered and rejected was competent and should have been admitted. The judgment of the Supreme Court must therefore be reversed, and a new trial ordered; costs to abide the event.