I dissent from the order denying a rehearing of this cause.

If the item of interest on the so-called stated account had been disallowed the amount found due the plaintiff. would have been less than the sum for which the defendant offered to allow judgment to be taken, and the plaintiff instead of recovering his costs in a large amount would have been compelled to pay the defendant’s costs—making a difference of more than four hundred dollars in the amount of defendant’s liability.

There was no account stated in a legal sense. Bishop Mora was about to resign his incumbency, and for the benefit of his successor adjusted the account of his steward to date, and a balance was struck showing the state of the account to date, but there was no interruption to the employment of the plaintiff; his duties continued as before at the same salary. He had property of the corporation in his hands which he disposed of and the proceeds of which he received. The balance found due him on settlement with Bishop Mora was entered in his current account as a new item, and against it he charged himself with the moneys collected on account of the defendant. There was no agreement and no circumstance. from which an agreement could be implied, and there is no finding that the balance ascertained on the adjustment of the account should be separated from the other items to form an independent obligation, payable at the date of the settlement, or at any time. On the contrary, the balance so ascertained was by the plaintiff himself treated as a new item in the current account of his stewardship, which continued without interruption for more than a year after the change in the incumbency of the bishop. And when his next account was rendered said balance was so entered without any charge for interest. In this account he credited himself with a final balance of $1,585.59, a result reached by omitting to charge himself with various sums collected for defendant, amounting in the aggregate to $849.71. Deducting these items, the real balance due him on his own theory as to the settlement was less than $750, the amount for which the defendant offered to let him take judgment. He refused this fair offer and subjected the defendant to the expense of a protracted trial, all the costs of which the defendant must pay, together with the sum of $119.12 as interest on his so-called stated account. If it is an essential element of a stated account that there must be a promise express or implied to pay the ascertained balance as a separate obligation, there was here no evidence to sustain the conclusion that the balance found due by Bishop Mora was a stated account, but on the contrary the strongest evidence furnished by the conduct of the plaintiff himself that he had no such understanding. In the only case ever decided by this court involving this precise point—a case in which the equities were all in favor of the party seeking to recover interest on agreed balances in a current account, a case not noticed in the opinion of the court— the decision was against the claim. (Chandler v. People’s Savings Bank, 61 Cal. 402 .)

I think the judgment should have been reversed.