Baker v. Mitchell , 59 Me. 223 ( 1871 )

Appleton, C. J.

It was decided in Theobald v. Stinson, 38 Maine, 139, and in Dyer v. Walker, 51 Maine, 104, that mutual accounts within the meaning of R. S. 1857, c. 81, § 99, are those where each party makes charges against the other for property sold, services rendered, money advanced, etc. If the account is kept by one party alone, there is no mutuality.

In 1867, by an act approved February 28 th, c. 117, an amendment was made to R. S. c. 81, § 99, so that the section with the amendment now reads as follows: “ In all actions of debt or as-sumpsit to recover the balance due upon a mutual and open account, the cause of action shall be deemed to accrue at the time of the last item proved in such account; and it shall be deemed a mutual and open account current, when there have been mutual dealings between' the parties, the items of which are unsettled, whether kept or proved by one party or both.”

It was held in Davis v. Smith, 4 Greenl. 337, that where there are mutual dealings between the parties, if there be items on both sides within six years, the statute of limitations does not attach' to those of an earlier date. “ Where mutual promises are relied upon to repel the operation of the statute, it is,” remarks Weston, J., “ upon the principle of a new promise, of ■which the acknowledgment of an unsettled account, implied from new' items of credit within six years, is evidence.”

According to the evidence, as stated in the exceptions, the wood credited on the plaintiff’s account was delivered in 1862. There is no interval of six years between the debts and credits of the parties. The statute makes it immaterial whether the items of debt and credit are “ kept or proved by one party or the other.”

Exceptions sustained.

Cutting, Walton, Babjiowb, and Tapley, JJ., concurred.