Theobald v. Stinson , 38 Me. 149 ( 1854 )

Cutting, J.

— The plaintiffs in this action seek to recover the amount of certain charges for professional services as a physician, contained in their intestate’s book of accounts, commencing December 29,1815, and ending August 21,1843.

The defence relied upon, is the statute of limitations, the date of the last item being more than six years prior to the commencement of the suit,- which is a sufficient answer, unless the plaintiffs, taking upon themselves the burden of proof, shall show that the action was “ brought to recover the balance due upon a mutual and open account current,” and that “ the time of the last item proved in the (defendant’s) account,” was within six years before the date of their writ. R. S., c. 146, § 9.

They attempt to do so: — First, by offering in evidence a copy of defendant’s intestate’s account originally filed in set-off, which in Theobald v. Colby, 35 Maine, 179, was permitted to be withdrawn.

Before the trial the plaintiffs had given due notice to produce the book of original entries of the defendant’s intestate, and the original account in set-off, which they offered to prove had been filed by the defendant; and neither having been produced at the trial, they offered in evidence an attested copy of the original account, and also proof of its contents,, and neither was admitted. Was this evidence rightfully excluded ?

If the defendant (then Colby,) had personally filed his account in set-off, or proof had been offered that it was in his handwriting, perhaps no good reason can be given why evidence of those facts, as well as the contents of that paper, under the circumstances, should not have been admitted ; but inasmuch as we are to determine the rights of these parties, upon the whole evidence in this case, and perceiving that the original account was not so filed by the defendant’s intestate, but by his attorneys, we must come to the conclusion, that the proof offered, if admitted, would have failed to establish a fact shown to have been otherwise by the copy, which is made a part of the case. Was the set-off filed by the attorneys, after the same had been withdrawn, admissible for the purpose of showing an indebtedness to tbeir client? We think not. Whatever might have been its effect, if suffered to remain on the files of the Court up to the time of, and during the trial, the attorney’s act of withdrawal counteracted that of the filing, and rendered such a paper inadmissible for any purpose. Suppose that the attorneys, instead of filing the account, had demurred to the plaintiffs’ declaration, (which would have admitted their claim,) and afterwards, by leave of Court, had withdrawn the demurrer and filed the general issue; would it be contended, that the plaintiffs under the latter could have introduced evidence of the former plea ? With no more propriety can they show the prior, but subsequently nullified proceeding of the defendant’s counsel.

Secondly, the plaintiffs contend, that they have proved labor performed by the defendant’s intestate for their intestate in May, August and October, 1844, thereby showing “ a mutual and open account current” between the parties. And assuming such facts to have been established, the question arises, as to what constitutes an “account.” Lexicographers define it to be “ a sum stated on paper; a registry of a debt or credit; an entry in a book of things bought or sold, of payments, services, &c.” And the learned Chancellor (in Renss. Glass Factory v. Ried, 5 Cow. 593,) “ a list or catalogue of items, whether of debts or credits.” In this case, there is no evidence, that the defendant’s intestate kept any books, or made any charges whatever, and the presumption would be, in the absence of proof to the contrary, that he received payment when the services were, performed. If the defendant’s intestate then kept no account, the question of mutuality becomes immaterial.

This construction does not conflict, but is rather in harmony with that given in Penniman v. Rotch, 3 Metc. 216, cited by plaintiff’s counsel, where it was in proof that “the defendant said there is an unsettled account between me and Penniman,” thus admitting a most material fact, which the plaintiffs here have failed to prove, and according to the ■agreement of the parties, a nonsuit must bo entered.

Plaintiffs nonsuit.

Shepley, C. J., and Rice and Appleton, J. J., concurred.