Bartel v. Mathias , 19 Or. 482 ( 1890 )

Lord, J.

(after stating the facts), delivered the opinion of the court.

The items of plaintiff’s claim for services under his alleged contract extend from the year 1878 to 1888, and as this action was commenced in 1889, unless the payment of $50 found by the referee to have been made in July, 1887, was a part payment of all such indebtedness embraced in such items, it is not disputed that the claim is barred by the statute of limitations. For the plaintiff it was argued that his whole claim was based on an entire contract and that the statute of limitations did not begin to run until the completion of his services under the contract, and that the payment of the $50 at the time alleged was necessarily a part of the entire claim for such services as sued upon and precluded the operation of the statute. On the other hand, the contention was that the facts as found from the evidence show that the claim consists of several distinct and separate items for services which were rendered at different times and in respect to different subject matters, and that tbe price to be .paid was agreed upon and apportioned to each item when tbe services were to be performed, and that when so performed were fully complete and ended as to each item, constituting in themselves distinct and independént transactions upon which a right of action then accrued, so that when the §50 was paid, there being several specific debts, unless there was specific reference to or an appropriation upon each of them, the payment was a general payment and would not interrupt the running of the statute. It is no doubt true that there are cases which hold to the effect that where there is a long-continued service performed by one person for another, and no time of payment or term of services being stipulated, and small payments have been made from time to time to apply upon the balance due, the services are deemed to be continuous, and a payment made within six years renews the whole claim for the previous services. In Smith v. Velie, 60 N. Y. 111, Grover, J., said: ‘ ‘The proof shows that the intestate let the plaintiff have, in every year, various sums of money and different articles of goods, of which he kept an account against her, which was to apply upon her wages. Whenever he did this, her services being continuous and no time fixed by agreement for the payment of any part, the presumption is that it was to apply upon the balance he at that time owed her and not upon the wages of any particular year. Indeed, I think the claim of the plaintiff, at any and all times for previous services, was an entire account and that she could have maintained but a single action thereon against the defendant; that she could not maintain a separate action for each year of services, or any other specified part, after all had been rendered. A payment by the intestate upon the balance due the claimant took the entire balance out of the operation of the statute.”

In Littler v. Smiley, 9 Ind. 117, it was held that upon an account for work and labor done under an agreement for payment without specifying at what time such payment should be made, or how long such labor should be performed, that the statute of limitations would not commence running until such labor was ended. But in Davis v. Gorton, 16 N. Y. 255, 69 Am. Dec. 694, where the services were performed under a general retainer without any agree-metit as to the time or measure of compensation, or the term of employment, it was held to be a general hiring from year to year, the pay for each year’s service becoming due at the end thereof, so that the statute begun to run on each year’s wages from the end of each year. See also Matter of Garaner, 103 N. Y. 535; 57 Am. Rep. 768; Mosgrove v. Golden, 101 Pa. St. 605; Mims v. Sturtevant, 18 Ala. 359. But the case at bar differs in essential particulars frun those referred to, and to which our special attention has been asked, and that the agreement here embraces a number of distinct subjects, all of which admit of and were separately executed and closed, constituting in themselves several and independent transactions, and for which the price to be paid for the services rendered was agreed upon and apportioned to each of such subjects. Such a case is not like a general hiring for services, as a farm-hand or house-keeper, etc., although no rate of compensation as wages nor term of employment is stipulated.

In the nature of things it would be difficult to fix the time of performance or rate of compensation for services to be rendered in respect to the various and distinct subjects embraced in the claim or agreements, and the facts as found from the evidence show that these subjects were mainly separately executed and closed, indicating that they were several and independent transactions. Take the claims for commissions for the sale of real estate or for procuring loans. It is incontrovertible that they were all severally executed and closed at different times and for a price agreed upon and apportioned to each transaction. The first item in the itemized bill filed by the plaintiff as part of his complaint is as follows: “February 7, 1879. To selling block 99 to John Kratz for §2,600, commissions as per contract, $300.” The faets as found by the referee show that, at the request of the defendant, the plaintiff procured a purchaser and effected a sale of that block, and that it was then agreed that the plaintiff should have for his services therein §800, and gave him a note or memorandum in writing for that sum. The same is true for the services rendered in respect to blocks 4 and 19 and for procuring three different loans of money, except as to giving the note, but for which the price was apportioned to each transaction at the time services were performed. These were all subjects embraced within the agreements, but which were separately executed and closed, and the amount to be paid agreed upon and apportioned to each one of them. Such contract is not entire but severable, and a right of action accrued when such services were rendered and ended. It is a familiar principle that the statute of limitations begins to run when the right of action is complete, and this being so a right of action accrued upon each of these matters when the services were rendered and the transaction closed.

The claims being thus several and distinct, the contention for the defendant now is that the payment of the fifty dollars was a general payment and not a payment to be applied in part payment of these several items found by the referee, and consequently did not prevent the running of the statute. But the findings show that the latter part of the year 1882 there was a settlement between the plaintiff and the defendant for all advances of money at and prior to that date made by the plaintiff for the defendant in payment of the defendant’s taxes and insurance and otherwise; that subsequently in August of 1883 the plaintiff informed the defendant that he had lost the two several notes given by the defendant to him, and that it was thereupon agreed between them that the amount of money represented by these two notes should stand upon the defendant’s liability to pay them without regard to the evidence of said notes, and that thereafter by the mutual understanding of the parties the said amount of moneys represented by said notes, together with all demands existing between them, should stand as an open account between the plaintiff and the defendant. These facts tend to indicate that after the elimination of all matters included in the settlement, there was a mutual understanding reached, not only as to the moneys represented by the notes and the liability therefor, but that there were other existing demands of the plaintiff against the defendant, all of which were to be deemed and treated as an open account. Distinct as they may have been, the claims were recognized as existing, although unsettled. The evidence also tends to show that at the time the fifty dollars was' paid by the defendant that he thought that the aggregate of these several items was about twelve hundred dollars, and not so much as tho plaintiff claimed, which tends to show that he knew of ani recognized the existence of these several claims, ar 1 had considered them in the aggregate, only differing as to the gross amount of his indebtedness upon them. This amount as computed by him is much greater than the largest amount in any one item, and exceeds áflL the others aggregated without it, which tends to indicate at least that when the fifty dollars was paid, that the defendant knew and understood that he was not making a part payment on any specific item, but that he was considering all the claims in the aggregate, and intended it to be applied in part payment of them all, or, in other words, for the whole service performed, represented by these several claims considered in the aggregate. The referee finds that the payments made, including the fifty dollars in July, 1887, were made and to be applied upon these several claims, and specifies them by enumeration “as shown by findings 4, 5, 6, 7, 8 and 9,” and finds that the balance due and for which the defendant is entitled to judgment is the sum of $1,756. It is admitted that the findings of the referee are conclusive as to the facts found if there is any evidence before him having a tendency to establish such facts.

Such being the case, it matters not how much we might differ with the referee, if we were permitted to pass upon the facts, his finding is conclusive upon us and we have no other alternative than to affirm the judgment.