dissenting:

I must respectfully dissent. In my view the fundamental question in this appeal is *674 whether the parties ever agreed that the plaintiff would be paid the full retention amount without back charges.

The magistrate conducted a several day trial tracing the entire history of the sludge problem. He found that the problem which developed in November, 1973, regarding sludge disposal, was permanently resolved in early February with replacement of the heat exchanger. After that resolution, the plaintiff sent the defendant repeated billings for the full retention, and no objection was ever voiced until June, 1975, when the defendant sent the plaintiff a check for an amount some $60,000 less than the full retention. The magistrate further found that the letter of March 18 was not simply a bill or a settlement offer but was a memorandum of an agreement made between the president of defendant and the plaintiff’s project manager regarding payment of the full $61,900 retention.

I believe the magistrate’s findings and conclusions to be fully supported by the record and would uphold them. I cannot agree with the majority that the record somehow compels us to overturn the factual findings of the magistrate and hold that the defendant is now entitled to challenge the plaintiff’s claim.

Nor do I think that affirmance requires any impermissible stretching of Oregon law. Recent Oregon cases discussing accounts stated focus on whether or not the parties have in fact agreed on the amount owed. TriCounty Insurance Inc. v. Marsh, 45 Or.App. 219 , 608 P.2d 190 (Or.App.1980); Cooley v. Roman, 286 Or. 807 , 596 P.2d 565 (1979). As Corbin points out, Oregon has apparently accepted the modern and better view that accounts stated can encompass unliquidated claims. 6 Corbin on Contracts § 1312 at 257 & 258 n.44 (1962) (citing State ex rel. Kaser v. Leonard, 164 Or. 587 , 102 P.2d 197 (1940)).