Thompson v. Fisher ( 1850 )

The opinion of the court was delivered by

Rosees, J.

On trial had at Nisi Prius, there being no disputed facts, the jury was instructed to find a verdict for the plaintiff ; and on a motion for a new trial, it was decided that on the pleadings and evidence, the verdict should be set aside, and judgment entered for defendant. To this judgment a writ of error is taken, and, as the case now stands, the only question is, whether the plaintiff is barred by the act of limitations. The action is assumpsit; pleas, non assumpsit, and the act of limitations; replication, mutual accounts; rejoinder, an account stated; sur-rejoinder, no account stated, and issue taken.

The prominent facts are these: In the spring of 1826, the defendant, Rodney Fisher, at that time in Canton, as factor or servant, received and disposed of a consignment of various articles of merchandize, for the ships Rush and Scattergood, belonging at the time of the shipment to Edward Thompson. After the shipment, Edward Thompson having failed in business, assigned all his estate for the benefit of his creditors, to Richard Renshaw and Peter Mackey. The account of sales, and invoices of the homeward cargoes, containing the charges for the commissions, now the subject in controversy, were forwarded April 1826, and duly received the 12th and 14th September, 1826, as appears by the indorsement of Peter Mackey, his confidential clerk, and at that time the acting assignee. The 20th December, 1826, the defendant writes to Peter Mackey, enclosing his account current with E. Thompson. In that letter he calls the assignee’s particular attention to the charges of commissions, stating the reasons he considers himself entitled to charge them. This letter, with the enclosed account, received the 13th April, 1827, exhibits a balance of eleven hundred and fifty dollars and thirty four cents. In the summer of 1827, the defendant returned to Philadelphia, and in November of the same year, settles the balance due with the assignee. From the time of his return he continued to reside in the city .of Philadelphia, with an intermission from 1840 to 1845, when he was in Canton, until the present time. In 1840, the defendant’s factory with all his books and papers was burnt. The evidence fully shews that, though fully aware of the defendant’s claim for commission, plaintiff and his assignees slept on their rights, without opposition or complaint, for more than nineteen years from the time the account was rendered.

In the aspect the case is now presented in, it is not of the slightest consequence what may be the merits of the original claim; for, however that may be, if the account rendered the 20th December, 1826, be an account stated, it is a flat bar to the plaintiff’s action. On the act of limitations the case is free from difficulty.— An account, when stated, as is ruled in Bevan vs. Cullen, 7 Barr 285, ceases to be mutual accounts within the exception of the statute. When an account of sales is rendered, and the consignor makes no objection to the items of the account, he thereby assents to it, and makes it an account stated. These principles, which are well settled in reason and authority, are conclusive of this case on the conceded facts; but it is said the rule does not apply to the relation of master and servant, but only to the relation of merchant and merchant, and their factors. The servant, as is contended, has no accounts to settle; they are his master’s accounts, qui faeit per alium faoit per se. The statute of limitations expressly excepts servants. This distinction is too nice for my comprehension. What class of persons comes within the exception of servants, it is not my business, at this time, to define. It is enough to remark that if the defendant is not a servant within the purview of the statute, the plaintiff is clearly barred. It would then present the ordinary case of an action to recover money received for the use of another, which is clearly barred, unless suit is brought within six years. But if it be the case of a factor or servant, within the meaning of the exception, which the plaintiff has himself averred, no satisfactory reason has or can be given, why the servant as well as the factor — supposing them to mean -a different class of persons — is not entitled to claim the benefit of the principle already adverted to, that an account stated ceases to’ be a case of mutual accounts. Both come within the same category. It is idle to say that the representative of a merchant, residing on the other side of the globe, either as factor, agent, attorney, or cleric, has no accounts to settle. It is impossible for a servant — or call him what you will — to arrange the business without the settlement of an account. It would be most unjust that he, although a clerk, should be liable to his principal, at any instance of time, after his vouchers may have been mislaid or destroyed. He surely has a right to the benefit of the reasonable presumption of their correctness deduced from the silence, and consequent acquiescence of the principal. Nor is there more Solidity in the objection that the rule does not hold when the parties live in the same place. Indeed, the presumption derived from acquiescence would seem to apply with more force, in such case, than where they live in another country and another State. It is difficult to account for silence, when they live in the neighborhood of each other, except on the supposition that the account was examined and found correct. In order to render an account current an account stated, it must, I grant, be assented to by the party to whom it is rendered, but the law does not require an express consent. Rendering an account of itself, does not make it an account stated, but it becomes so by the consent of the consignors to whom it is sent. Their assent is inferred from a silence unnecessarily long. It is a presumption juris de jure, for an account current must be objected to without unnecessary delay ; or it is considered, on well settled principles, an account stated, and as such obligatory on the adverse party. The law wisely requires notice of objections if any exist. The rule is absolutely essential to the safety of a mercantile community. That the account rendered by the defendant has, by the lapse of time, become an account stated, is too plain to admit of argument. It is headed “ Edward Thompson in account current with Rodney Eisher.”— It results in a balance of $1157 34, which in 1827, was settled by the parties. The account is signed R. Eisher. It comes directly within the principle asserted in Bevan vs. Cullen, that an account rendered, with a balance struck, and that assented to by the party to whom it is rendered, is an account stated. The account current is rendered by a consignee to a consignor, resulting in a balance struck, shewing with precision what the consignee claimed, calling the attention of his principal particularly to the only items about which there could be any dispute; the principal keeping the account without objection for more than nineteen years. If this on principles well settled, is not an account stated, it is difficult to imagine what constitutes such an account. That the defendant asked the opinion of others in whom he had confidence before he made the charge, that he solicited the friendly offices of Mackey, requesting him to lay the documents’ and a statement of the case before counsel, cannot alter the character of the account after acquiescence for so great a lapse of time. So long a period being suffered to elapse, arising from what cause it may, surely the defendant had a right to act on the reasonable presumption that it met the approbation of his principal. And whether submitted to counsel or not, is immaterial. It is not the fault of the defendant that the assignee may have omitted, (if such be the fact — of which we have no evidence,) to avail himself of professional advice.

But the account was sent to Mackey, the assignee, and not the plaintiff, the assignor. The account of sales, as is said in Bevan vs. Cullen, is forwarded according to mercantile usage, to the legal owner of the goods ; the consignee is not bound to notice the equitable or contingent owner. There, the principle, which is a general one, was correctly applied. Bevan and Humphreys, to whom the account was sent, were the legal proprietors of the consignment, and so far as concerned the interest of Curcier, to whom the plaintiff in error alleged the account should have been sent, were his authorized agents. Curcier had but a contingent interest iff the shipment. The account was, therefore, properly sent to the former, whose duty it was to advise the latter of the state and condition of the assignment. But that is not this case. What would have been the effect if the account had been sent to Edward Thompson, the legal owner, it is unnecessary to determine. • It is, however, very certain that, had this course been pursued, a more plausible case would have existed for the plaintiffs, than when it is sent, as here, to the only party having a right to demand it, the only person having the authority to settle the account and receive the balance, if any due. It was properly rendered to the assignee, who alone had a legal authority to reject or confirm it. The account, it is true, must be stated between the parties, but I know of no rule which forbids an account, as is contended, to be stated except between the original parties. Such a rule would be inconvenient, and in many cases might lead to mischief.

We perceive nothing in the allegation that the plaintiff is not bound by the account current of December, 1826, because, as is contended, they were assignees or trustees to realize the property by the collection of all outstanding debts, and had no authority to abandon a claim. The settlement in question comes expressly within the scope of their authority. If unwisely made, it is nothing to the defendant. If the assignee assented to the balance struck, as was the case, the creditors are bound, unless there was fraud, of which I see no evidence. It is only another form of ascertaining the amount due, the claim for commissions constituting a part of the account. It is not the abandonment, but the acknowledgment of the validity, a claim plainly and distinctly made, and the ascertainment of the amount of the account, which, if done without fraud, binds all the parties. If the creditors, or Edward Thompson, have any redress, their remedy is against the assignees.

Judgment affirmed.