Hammond v. Hale , 61 Iowa 38 ( 1883 )

Beck, J.

— I. The defendant, among other defenses, pleaded the statute of limitations. The last item of the account is of the date March 2, 1875. There are two credits upon the account, one of $50 cash, paid April 30, 1875, and the other $12 y-jy-Q- cash, paid June 11, 1877. The evidence establishes the facts to be that, between the dates of the last item of account and the first credit, defendants, ceasing business, sold their stock in trade to one Mitchell, who undertook to pay the indebtedness incurred in their business, and that the first credit is for a payment made by Mitchell, and the second for a payment made after his death by his administrator, the account having been filed by plaintiffs as a claim against Mitchell’s estate. There is evidence tending to show that, after the sale by defendants, they, Mitchell and plaintiffs, agreed that plaintiffs were to look alone to Mitchell for payment.

II. The circuit court, upon these facts, held that the payments should not be entered as a part of the account, so as to require it to be regarded as running and continuing to the date of the last credit. The conclusion of the circuit court, in our opinion, is correct. The payments were made in pursuance of a contract with Mitchell, and under this he became bound to pay plaintiffs, and was indebted to them. The indebtedness did not rest upon the account, but upon the obligation to pay defendants’ debt. The payments were made in discharge of this indebtedness. The account was closed when Mitchell assumed its payment. The payments, while they operated to discharge defendants’ debt pro tanto, were not credits thereon in the sense of the word when used in reference to current and other accounts. Mitchell was not agent of defendants when he made the payments, but acted for himself in the payment of his own debt. The same remark may be made of the administrator.

The transaction, is simply .this: defendants were indebted on the account to plaintiffs; they sold out and quit business, arranging to pay plaintiff's by means of Mitchell’s undertaking to discharge their debt. It is plain that the account was then closed, and that it did not afterwards exist as a “continuous, open, current account,” as contemplated by Code, section 2531. Mitchell’s payments upon his own indebtedness operated as payments jpro tanto upon the account against the defendants, which had ceased to be “continuous, open and. current.” They are not items of the account from the date of which the statute of limitations begins to run, under Code, § 2531

Affirmed.