Mills & Co. v. Davies , 42 Iowa 91 ( 1875 )

1. STATUTE of limitations: account: last item.

It will be observed by the somewhat unusually extended statement of facts, preceding this opinion, that the account upon which plaintiffs bring their action contains numerous items, beside the five main items for composition, press-work, paper, binding and engraving the map, respecting which it was claimed that there was a special contract. For instance, the first three items for circulars at two different dates, and cards upon another date, are not claimed to be embraced within the terms of the special contract; and the defendant by the second count of his answer expressly admits the correctness of these items, and to avoid the effect of them, as constituting with the other items a proper subject matter of an account, he avers that he paid therefor in July, 1869. But by reference to the credits given in the account, it will be seen that no such distinct payment was made, and the defendant by his own testimony affirms that the payments on the contract are correctly stated in the plaintiffs' petition and account. The other items for packing boxes, cartage, printing and paper for maps, pressing sheets and lining paper, are entirely outside of any contract, even as claimed by the defendant; and some of them, such as the packing boxes, cartage, etc., were not necessary in order to complete the contract, but were only made so by the failure of defendant to call for or receive the books when completed, or the failure of plaintiffs to complete them in time. The items for 46 reams of paper which were necessarily embraced in the contract, so far as to fix the price per ream, were uncertain as to the number of reams, and would remain so necessarily to some extent, at least until the completion of the work. The items of credit, being seven in number, are for payments which must have been made simply upon the contract, and such payments necessarily constitute proper items of an account — since only by the keeping of an account thereof could the parties properly settle that business. Some of these items of credit are as late as 1872 and 1873, and we have held that the statute of limitations which provides, "Sec. 2531, when there is a continuous, open, current account, the cause of action shall be deemed to have accrued on the date of the last item therein as proved on the trial," refers to the last item, whether it be on the debit or credit side. Thorn Stein v. Moore,21 Iowa, 285, see, also, Penniman v. Ratch, 3 Metcalf, 216.

2. ____:____: contract.

The fact, if it be such, that the parties agreed upon the price per thousand ems for composition, and per token for press-work, and per volume for binding, when the amount of such composition, press-work and binding or either of them could only be ascertained when the work was done, would not in our opinion render such items improper items of an account, or effect the statute of limitations on such account when made. The case is different from a contract to do a particular item of work at a fixed price for such item. But even in such case, if there were other dealings properly matters between the same parties, we should hesitate long before holding that such distinct items of work, at a specific price, might not properly constitute an item, in the account between such parties. For instance, a tin manufacturer or merchant may sell his wares to a customer and have an open account therefor, and in its progress the customer may order one or more specific items of work at a price agreed in advance, and they being done and furnished him, may they not properly be inserted in the account against the customer? And could the customer in such case defeat the claim for such items, by showing the fact that the work was done, and the article furnished under a special contract as to the price?

3. ____: ____: ____.

In our view, therefore, the court erred in giving the seventh instruction set forth in the statement of facts preceding this opinion, for that it made the running of the statute of limitations to depend upon whether there was an unwritten contract respecting certain items of the account, regardless whether such items were properly the subject matter of an account. The evidence shows that the plaintiffs were engaged in the business of publishers, stationers, printers, binders and lithographers; and to hold that items furnished to customers connected with their business, and properly the subject matter of an account, were to be excluded therefrom, because of a parol agreement as to price before their manufactory or delivery, would be to overturn the theory of the law. For in contemplation of law there is an implied agreement on the part of the customer, at the time of delivery of an article to him, to pay the reasonable value thereof. Such an agreement has no greater or less binding force upon the customer, if it is expressly uttered at the time.

There is nothing in this case tending to show in any degree, that the items of this account, as charged, are not properly the subject matter of an account between the parties. But it is sought to change the effect of the statute of limitations, by showing that the parties simply agreed in advance as to the price of certain articles. And this is the practical effect of instruction number seven, and the same error inheres in number twelve. And herein lies its error. The case of Spring v.Executor of Gray, 5 Mason, 505, and s. c. 6 Pet., 151, has no bearing in this case, for there the question was whether the parties plaintiffs were within the exception of the statute of limitations, made in favor of "such accounts as concern the trade of merchandise between merchant and merchant." For the error of the court in giving instructions 7 and 12, and thereby in effect holding that the plaintiffs' right of recovery depended upon the fact as to whether a special contract was made as to price, respecting certain items of the account, instead of upon the fact whether they were properly the subject matter of an account under the circumstances, and between the parties, the judgment is

REVERSED.