contradict any of its terms, for it contains no promise on the part of the defendant to pay any other or different sum. But we prefer to place our decision on the first ground.
It was urged that the statement of the case was not settled in time. But the order settling it operates of itself as an extension of the time until the date of the actual settlement. Johnson v. Railroad Co., 48 N. W. Rep. 227, 1 N. D. 354. Other questions of practice, relating to the motion for a new trial, are raised; but no motion for a new trial was necessary to present the question we have discussed on the merits, as the error of the court was one of law occurring on the trial, and can be raised by an appeal from the judgment, which is the nature of this appeal. Sanford v. Bell, 48 N. W. Rep. 434, 2 N. D. 6. It was urged that defendant had estopped himself from questioning the fact that this invoice correctly stated the price, because he read the same some time before the commencement of the action, and that he received and retained without objection an account in which he was charged for the lumber upon the theory that the price was to be, not as he claimed, but as plaintiff now insists. This was about September 25th. The lumber had already been delivered. If defendant’s statement is true, the price had been agreed upon at a different sum, and he was under no obligation to return the lumber on discovering that the plaintiff had made different figures in an invoice handed him, but which contained no promise on his part to pay this price, and which he never had reason to regard as embracing the contract. With respect to the bill received and retained without objection, it is sufficient to say that although, in the absence of any evidence of error, the account might be regarded as conclusive as an account stated, yet it is elementary that the person who receives the same may always show an error therein. See cases cited in note to Lockwood v. Thorne, 62 Amer. Dec. 81-91. There certainly was an error therein if defendant’s contention regarding the price to be paid for the lumber is correct. Nor is it any answer that the error in the account stated was not pleaded. Defendant was under no obligation to plead it, because he was.not apprised by the complaint that an account stated would be relied upon. The action was merely to
