other merchandise from the hardware company, to the amount of $176.36; that the sum had not been paid, because, on different days between October 11 and 17, 1882, the defendants were garnished by various persons having actions pending against the company, and required to answer in the district court of Atchison county, Kansas, in respect to such indebtedness; and that they had, as required, answered in all said cases that they were indebted to the company in the sum of $176.36; that they have not been discharged as such garnishees, and they never had any notice of the assignment of their indebtedness to the plaintiff. To this answer a reply was filed, containing— First, a general denial; second, that if there was an accounting and settlement, and full receipt given, as defendant claimed, such settlement was made and such receipt executed without the knowledge, consent, or authority of the hardware company, and defendant knew he owed more than the amount covered by such receipt. The reply further alleged that all the cases in which the defendants were garnished had been disposed of, and that they were discharged from liability as such garnishees. Trial had before the court without a jury, at the October term for 1883. The court made a general finding in favor of the plaintiff against the defendant, and entered judgment for the plaintiff in the sum of $1,542.74, together with costs. The defendant excepted and brings the case here.

Doster & Bogle, for plaintiff in error.

J. D. Milliken and Baker & Pancoast, for defendant in error. HORTON, C. J. It is alleged on the part of plaintiff in error (defendant below) that the only issuable fact in this case, under the pleadings, regarding the indebtedness sued for up to September 1, 1882, was, had there been an accounting between the parties, an agreement as to the amount due, the payment of such amount, and the execution thereupon of a receipt in full? Upon this theory it is. urged that the defendant in error (plaintiff below) was not entitled to recover upon the account, and that the admission of any evidence tending to show errors or mistakes in the books of account was incompetent and irrelevant. As the defendant's answer contained a general denial, it was incumbent upon the plaintiff-First, to prove the indebtedness alleged in his petition; and, to do this, it was proper for him not only to show that the goods and merchandise sued for were ordered and delivered to the defendant, but to explain the charges in the original books of account, kept by the Western Hardware Company. The burden of the proof was upon the defendant below to establish the settlement of the account between himself and the hardware company. There was evidence for and against. The court found against the defendant, and we think there was evidence sufficient to sustain the finding. It is urged, however, that the evidence adduced before the trial court showed conclusively the account between the parties had been stated; that the balance found due upon settlement had been paid; and that a receipt had been given in full.

To support this it is asserted that there was a dispute between the hardware company and defendant as to the amount due up to September 1, 1882; that about the last of August or the first of September, 1882, the company sent Mr. Schlicter, its traveling salesman, to defendant, for the purpose of checking up and settling the account; that it was then agreed between the salesman and defendant that the account was incorrect; that defendant told Schlicter he was willing to pay $639.22, as a settlement of the account; that Schlicter left without making a settlement, admitting that the account was incorrect; that defendant then sent to the hardware company $100, and, in a few days thereafter, received from the company the following statement:

"ATCHISON, KAS., Sept. 18, 1882.

"Messrs. R. M. Clark & Co., McPherson, Kas., in account with Western Hardware Company, 516 and 518 Commercial St.

"FRIEND CLARK: We are fearful hard up. ▲ send you two notes, which you can fill up for amount at 60 and 90, if you wish, or take off 20 per cent. and remit if you can. Do this at once.

"Yours,

MARBOURG."

-that defendant at once returned his note for $539.22, inclosed in the following letter:

"MCPHERSON, KAS., Sept. 19, 1882.

"Western Hardware Company, Atchison, Kas.

"GENTS: According to request we send note for $539.22 to bal. act. in full September 1st. Please acknowledge the same and oblige,

"Yours, truly,

R. M. CLARK & Co."

-and that on September 22, 1882, the company returned the following answer thereto :

"Messrs. R. M. Clark & Co., McPherson, Kas.

"GENTS: Yours of the nineteenth received, with note for $539.22, and we place same to your act. in full to September 1, '82. Please accept our thanks. WESTERN HDW. Co. "RINGO."

"Yours, truly,

The trial court was the judge of the credibility of the witnesses and the weight of the evidence; and with the finding of the court against the defendant, we may assume that the evidence did not show that Schlicter visited defendant to check up and settle the account about the last of August or the first of September. The evidence of plaintiff below was that Schlicter left the employ of the hardware company August 1, 1882. His conversation with defendant must have been

prior to that date, if he had anything to do with examining or settling the account while in the employ of that company. It appears, however, that the defendant ordered and received goods from the company between August 1, 1882, and September 1, 1882; therefore there was no checking up or settling of the account of that month. This also shows that there was no examination or settlement of the account between Schlicter and defendant up to September 1, 1882. Again, after the erroneous charge against the defendant of $338.12, and the erroneous credits of $933.22 and $51 in favor of defendant, were corrected upon the account-books of the company, there was no dispute as to the balance of the account up to September 1, 1882. The account subsequent to that date was admitted in the answer to be correct. All of this tends to show that the defendant did not understand he was owing only $539.22 the last of August, 1882, and clearly shows that there was no account stated, settled, adjusted, or compromised between the defendant and Schlicter in August, 1882, or subsequently. We do not consider the evidence that a person who had been an agent of the company on or about the twenty-fifth of September, 1882, informed the defendant "that the account was settled up to September 1, 1882, and that the books showed it," of any importance, because prior to that time the company had made an assignment, and such person, therefore, was not at said time the agent or representative of the company; moreover, the books of account of the company show

that this statement was untrue.

An account stated is an account which has been examined and accepted by the parties. "In stating an account, two things are necessary: First, that there be a mutual examination of the claims of each other by the parties; and, second, 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 evidence shows, however, that either of the parties did not understand that there had been any final adjustment of their respective demands between them, the courts are not to decree an adjustment between them contrary to their own understanding in the matter. Lockwood v. Thorne, 18 N. Y. 285; Williams v. Glenny, 16 N. Y. 389; Reinhardt v. Hines, 51 Miss. 344; 6 Wait, Act. & Def. 424.

In the case before us, there was no mutual examination of the account of the hardware company up to September 1, 1882, by the

company and the defendant, or by the plaintiff and defendant, other than that, when the erroneous charge and credits were discovered, they were corrected, thus leaving the parties to understand the actual amount due from the defendant. In transmitting to the defendant on September 18, 1882, a statement of his account, the company erroneously made the balance prior to September 5, 1882, $539.22, and on September 22, 1882, the book-keeper of the company, by mistake, acknowledged the receipt of defendant's note for $539.22, in full of the account to September 1, 1882. Subsequently, the defendant was informed of the actual condition of his account, and while the letters of the company raise an inference that there had been an account stated and settled between the parties, the evidence in the case clearly rebuts such inference, and shows that, under the circumstances of the case, there was no account stated between the parties, and that the account sued on was due at the commencement of this action. It cannot be claimed that the balance rendered September 18, 1882, was correct; and if the evidence of plaintiff be accepted, the defendant must have known, at the time he transmitted his note of September 19, 1882, that his account up to September 1, 1882, was largely in excess of $539.22. It is the rule that an account rendered is only prima facie evidence against the party making it, but does not estop him from showing the truth; and an account rendered, therefore, may be impeached or corrected within a reasonable time. Should the balance claimed upon an account rendered be actually paid, the account would still be open to correction in the same manner, and the party who has given a receipt admitting payment has the right always to show by oral evidence that it was given by mistake and that it was untrue; and he has the right to show how and why he gave the receipt. Bridge Co. v. Murphy, 13 Kan. 35, 40; Stout v. Hyatt, 13 Kan. 233, 242, 243; Champion v. Joslyn, 44 N. Y. 653; Spangler v. Springer, 22 Pa. St. 454.

Passing to the other branch of the case, we find that the answer alleged that as to the purchases made subsequent to September 1, 1882, by the defendant of the amount of $476.36, the same had not been paid, because on different days between October 11 and 17, 1882, the defendant was garnished by various parties having actions pending against the hardware company, and required to answer in the district court of Atchison county in respect to such indebtedness; that he answered in all said cases, setting forth he was indebted to the company in the sum of $176.36; and that he had not been discharged as such garnishee. The answer was insufficient. It did not state the amount of the claims of any of said parties against the company, or show whether the whole or what portion of the debt had been attached, or that any judgment had been rendered against the defendant therein, or that any order had ever been made upon his answer as garnishee. Drake, Attachm. § 705; Crawford v. Clute, 7 Ala. 157. The defect in the answer was not cured by the reply, as

that simply stated that the cases mentioned in the answer had been finally disposed of and the defendant released from all liability. We cannot gather from either the answer or reply what portion, if any, of the debt was attached. In addition to this, the record shows that the plaintiff has become the sole owner of all the claims in which the attachments were issued against the hardware company, and also the owner of all the assets of the company, and that the defendant can never be required to pay anything by reason of the garnishee processes having issued.

The judgment of the district court will be affirmed. (All the justices concurring.)

(33 Kan. 441)

STATE V. MAYBERRY and another.

Filed April 10, 1885.

1. LIBEL-NEWSPAPER ARTICLE.

In order that an article published in a newspaper should be held to be libelous as to a particular person, it is necessary that the language of the article should be such that persons seeing it and reading it should, in the light of surrounding circumstances, be able to understand that it referred to such person; but held, that the article in the present case answers this description. 2. SAME-ACCUSING EDITOR of DrunkENNESS.

The following words, published in a newspaper, if false and malicious, as they are alleged to be, are, in Kansas, and under the circumstances of this case, libelous, to-wit: "The editor of the Chronicle has been intoxicated on several occasions, and that, too, after he was elected to the legislature as the champion of prohibition."

In a criminal prosecution for libel, where the defendant is charged with having published that the prosecuting witness had "been intoxicated on several occasions," the defendant may prove, by witnesses acquainted with such prosecuting witness, that they had seen him "acting as though he was intoxicated."

Appeal from Osage county.

R. C. Heizer and Wm. Thomson, for appellee.
Ellis Lewis, for appellants.

VALENTINE, J. This was a criminal prosecution for libel. The defendants, James Mayberry and June B. Mayberry, were charged with the offense of libeling John E. Rastall, the editor of the Osage County Chronicle, and were convicted, and sentenced to pay a fine of $25 each and the costs of the suit; and from this conviction and sentence they now appeal to this court. The alleged libel was an article published in the Osage County Democrat, a newspaper published in the city of Burlingame, Osage county, Kansas, of which newspaper the defendants were the editors and proprietors. The said article reads as follows:

'CHARACTERISTIC OF HIM.

"The sneaking innuendo thrown out by the Chronicle last week at ex-Gov. Robinson and Col. Glick, is characteristic of the hypocritical puppy who wrote it. Both gentlemen alluded to by our subterranean contemporary are too well known and too highly esteemed to be affected by cowardly insinuations com