law-account-stated | credit card debt suits | suit on sworn account | common law cause of action on
open account |
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.
A party is entitled to relief for a stated account where (1) transactions between the parties give rise to
indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an
amount due, and (3) the one to be charged makes a promise, express or implied, to pay the
indebtedness. Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex.App.-Dallas 2008, no
pet.); Neil v. Agris, 693 S.W.2d 604, 605 (Tex. App.-Houston [14th Dist.] 1985, no writ); McFarland v.
Citibank (South Dakota), N.A., 293 S.W.3d 759, 763 (Tex.App.-Waco 2009, no pet.) (not yet reported).
RECENT APPELLATE CASE LAW (PETITION DENIED BY TEX. SUP. CT)
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).