law-account-stated | credit card debt suits |
CAUSE OF ACTION FOR "ACCOUNT STATED"
An account stated has been defined as an agreement 1) between two persons who
have had previous transactions, 2) fixing the amount due in respect of such
transactions and 3) promising payment.
Neil v. Agris, 693 S.W.2d 604 (Tex.App.- Houston [14th Dist.] 1985, no writ)
(citing H.G. Berning, Inc. v. Waggoner, 247 S.W2d 570 (Tex.Civ. App.- Beaumont 1952,no writ)
NOTE: This antiquated common-law theory of recovery is being revived credit card debt collectors to
avoid the need to proof up the original written card agreement (contract) which is often not available,
particularly for accounts opened more than seven years prior, or accounts that were sold and
assigned by the original creditor (i.e. , the credit card issuer) to a debt collector.
RECENT APPELLATE CASE LAW (PETITION DENIED BY TEX. SUP. CT)
08-0425
KENNETH J. MAGNUSON v. CITIBANK (SOUTH DAKOTA) N.A.; from Denton County; 2nd district
(02-06-00465-CV, ___ SW3d ___, 02-14-08, pet. denied Aug 2008) (suit on credit card debt by
original creditor, card issuer, Rule 12 motion, hearing by submission, failure to appear)
Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381, 388 (Tex. Civ. App.- Dallas 1971, writ ref'd n.r.e.)
(“The essential elements of an 'account stated' are transactions between the parties [that] give rise
to an indebtedness of one to the other; an agreement, express or implied, between the parties fixing
the amount due; and a promise, express or implied, by the one to be charged, to pay such
indebtedness.”); Cent. Nat'l Bank of San Angelo v. Cox, 96 S.W.2d 746, 748 (Tex. Civ. App.- Austin
1936, writ dism'd) (determining whether the amounts shown by a company's books as due to an
employee's wife after his death constituted a stated account between employer and employee where
the books showed no agreement by the employer as to the correctness of the amount due, and
holding that employer's payment of various sums to the employee's wife over a two-year period “was
clearly sufficient to constitute an implied assent to the correctness of said account” and was
conclusive of the amount still due to the employee's wife).
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