Hannan v. Engelmann , 49 Wis. 278 ( 1880 )

Oole, J.

The county court overruled the exceptions which were taken to the findings of fact made by the referee. The first finding was, in substance, that between the first of June, 1871, and the first of February, 1878, the plaintiff, at the instance and request of the defendant, performed the labor and furnished the goods and materials mentioned in the complaint and amended bill of particulars, upon the individual credit of the defendant, and that they were of {he value set forth. It cannot be successfully denied that there was sufficient testimony to sustain this finding, and certainly there is no such preponderance of evidence against its' correctness as would warrant this court in setting it aside, under our decisions upon this question of practice. Now, if the plaintiff really gave no credit to the Engelmann Transportation Company, but rendered his services, and furnished his goods and materials, solely on the credit and promise of the defendant, then it is plain that the defendant is liable for them. .

It is objected on the part of the defendant, that the manner in which the book accounts were kept by the plaintiff conclusively shows that he looked to the transportation company for the payment of some portion of the items charged and now attempted to be recovered of the defendant. But why the accounts were kept, or the various items charged, in the manner they were, is satisfactorily explained in the testimony; and the referee finds, as the fact doubtless was, that the credit of the whole account originally was given solely to the defendant, and not to the persons or corporations indicated in the caption or heading on the pages of the account. Undeniably a large amount of the items was furnished for the sole benefit of the defendant, and we think the evidence shows that he is liable for the payment of the whole account, ol- rather the balance due on what are described in the amended bill of particulars as accounts “A.” and “B.”

The second defense in the answer sets up the statute of limitations to all the items in the account commencing with the first of June, 1871, and ending the 27th day of July, 1872, or bearing date six years prior to the time this suit was instituted. To the bar of the statute the plaintiff’s counsel gives the following answers: first, that the evidence shows that the account is a mutual and open account current within the meaning of section 21, ch. 138, Tay. Stats., and therefore the statute only began to run from the date of the last item, charged; second, that the law would apply the payments which were made by the defendant from time to time, to the extin-guishment of the earlier items, and the balance of the account would not be barred. These answers seem entirely conclusive and satisfactory upon this defense. That the account was a mutual and open account current within the meaning of the statute, does not, we think, admit of doubt. The account shows a system of mutual dealings and of reciprocal demands between the parties, beginning in June, 1871, and continuing to January, 1878. The plaintiff, on his side, rendered labor and services, and furnished materials of various kinds for the use of the defendant, as required; and the defendant, on the other hand, made payments in cash, sold the plaintiff lumber and slabs, and in one instance gave a buggy, carriage and $400 in exchange for another carriage.

These various transactions certainly show a system of mutual debt and credit, and course of reciprocal dealing, where there were cross demands and matters of set-off, which together constituted a mutual open account current within the authorities. Says Mr. Angelí, in his work on Limitations: “The rule that items within six years draw after them other items beyond that period, is by all the cases strictly confined to mutual accounts, or accounts between two parties which show a reciprocity of dealing.” Section 148. Again lie says: “ Mutual accounts are made up of matters of set-off. There must be a mutual credit, founded on a subsisting debt on the other side, or an express or an implied agreement for a set-off of mutual debts.” Section 149. See, also, Prenatt v. Runyon, 12 Ind., 174; Moser v. Crooks, 32 Iowa, 72; Dyer v. Walker, 51 Maine, 104; Norton v. Larco, 30 Cal., 126; Peck v. N. Y., etc., S. S. Co., 5 Bosw., 226. This is not a case where the items in the account are all on one side, no element of mutuality existing except such as partial payments create. But the evidence shows that there have been mutual dealing and mutual credits between the parties, which bring the account within the exception in the statute.

On the other question the answer to the bar of the statute seems to be equally conclusive; for, as we understand the authorities, the rule with regard to an open current account is well settled, that, where the parties themselves fail to make the application of payments, the law usually applies them to the extinguishment of the earlier items. That rule was recognized and applied in analogous cases in this court in Robbins v. Lincoln, 12 Wis., 1, and Turner v. Pierce, 31 Wis., 342. See, also, Fairchild v. Holly, 10 Conn., 175. The rule, as stated by Mr. Justice Paine in Bobbins v. Lincoln, is, that where the debtor makes no application of the payment when made, the creditor has the right to apply it as he pleases; and that, in the absence of an application by either party, the court should make such application as will be equitable and just under all the circumstances. In Stone v. Talbott, 4 Wis., 442, and Jones v. Williams, 39 Wis., 300, the law in regard to the appropriation of payments is somewhat considered. In this case, upon this open running account, there surély is no injustice in applying the payments made by the defendant to the extinguishment of the earlier items. When this is done, it is obvious the balance of the account does not fall within the bar of the statute.

It follows from these views that the judgment of the county-court must be affirmed.

By the Court:- — Judgment affirmed.