Hagar v. Springer ( 1874 )

Virgin, J.

The question is whether the plaintiff’s account is barred by the statute of limitations. This involves the construction of K. S., of 1857, c. 81, § 99, as amended by Public Laws of 1867, c. 117, that being the statute in force when this action was commenced.

E. S., c. 81, § 99, as amended, provided: “In actions of debt or assumpsit to recover the balance due upon a mutual and open account current, 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 is not essential that the plaintiff state both sides of the account, strike the balance and declare for that specific sum in order to render his action one “to recover the balance due.” The mutual dealings between the parties constitute together the items of but one “account.” Either party or both may sue their individual side of the account. In his action each may state his own or both sides of the account. If one party sue his side only, the defendant may or not, at his option, file his side in set-off; and if he does not, he does not necessarily waive his right to recover it in another action. If. none of the plaintiff’s debit items be within six years next preceding the date of his writ, and the defendant do not file any account in set-off, or prove anything as payment, it will be incumbent upon the plaintiff in order to avoid the bar, to prove some item of credit, i. e., some item of the defendant’s side of the account within six years. When he has done that, he will have taken out of the statute such items in his own side as are within six years of the credit item proved; for “the last item proved in such account” includes the last item on either side. Baker v. Mitchell, 59 Maine, 223 ; Penniman v. Rotch, 3 Metc., 216.

The witness called by the plaintiff testified substantially, that he superintended the ship yard of the plaintiff’s intestate in 1857, and until the death of the intestate in 1862; that he, by a clerk, kept the account of everything which came into and went out of the yard, including the items in the account annexed, except the last four, and had a personal knowledge at the time of their delivery ; that the book produced was the intestate’s book of accounts of the ship-yard ; that it had been constantly in his possession except a few days in 1867, when he left it with the intestate’s son; that in 1867 witness saw the defendant examine the account in the intestate’s son’s office and heard him say and finally “agree that it was all right,” and that he would “come in and settle it up;” and that the account annexed except the four items named is copied from the book.

The book itself has not been before this court — neither party has objected — but simply a copy of the debit items. Whether there are or not any credit items in the book, the case fails to show. We therefore presume that all the material parts of the book are before us. Upon this undisputed evidence we think all the items in the account annexed excepting the last four are sustained so far as the general issue is concerned.

The account annexed contains no item of credit. Moreover the last item of it proved is dated May 28, 1859 — nearly eight years and a half prior to the date of the writ, October 31, 1867. Hence if the evidence stopped here, the action would be barred. But the plaintiff has put into the case a copy of the writ and account annexed therein, in the action of this defendant against this plaintiff, and of the judgment on the whole amount of that account. Upon looking at that account we find the account commenced as early as 1855, and several items in 1857,1864 and in 1865. This we think is legitimate evidence of such items; and they being within six years of the date of the plaintiff’s writ, and also within six years of the items in her account annexed, the action is not barred. Judgment for plaintiff for §47.70, and int. from Oct. 31, 1867.

Appleton, C. J., Dickerson, Barrows and Danforts, JJ„, concurred.