Page:Federal Reporter, 1st Series, Volume 5.djvu/503

 MARtE V. STROUSE. 491 �parties extended through a period of over two years, during ail of which time interest was charged monthlj' at 2 per cent. It appears, also,, that at this time the bank rate as weU! as the brokers' rate in Virginia City was 2 per cent, per month, and that the defendant did business with neaxly or quite every broker and banker in the city. I find, then, that Strouse knew the rate of interest charged against hitti in his account. There was no mistake or fraud about it. Having this knowl edge, he not only receives and retains accounts without ob- jection, but even pays them. The method of keeping and rendering accounts continued so long as to become a regular course of dealiug between the parties. Under such circum- stancesthe authorities are clear that an account stated cannot be opened beeause an item of interest which went into it could not have been recovered by suit, provided suçh item is not illegal. Backus v. Minor, 3 Cal. 231; Young \. Hill, 13 N.Y. S.C. 613; Bainbridge v. Wilcocks, Bald. 536; Treeland V. Herron, 7 Cranch, 147. �After July 31, 1875, no accounts were stated between the parties. The defendant did not bring his bôbk in to have it written up after August, 187S. The balance against him July 31st was $41,841.83. Dealings still continued between the parties as before for a long time, the last item on the debit side bearing date December 24, 1876, and the last on the credit side August 14, 1877. After August 1, 1876, the account was kept on plaintiff's books as before. Monthly balances were struck, embracing current charges and interest as well on the balance from the preceding month as on cur- rent advances. Credits arising from sales of stock, dividends, or cash were set opposite these charges and deducted from the debit side, the balance so struck being carried forward and making the first item of the next monthly account. The defendant paid ail moneys in generally on account, never making any application of them, but they were applied as paid in or received by the brokers to the payment of ail back indebtedness, including the interest at 2 per cent., the appli- cation being made to that account which had accrued first in point of time. ����