Seth Spring and Others, Plaintiffs In Error v. the Executors of William Gray, Defendants In Error

• Citation: 31 U.S. 151,8 L.Ed. 352,6 Pet. 151
• Parties: SETH SPRING AND OTHERS, PLAINTIFFS IN ERROR v. THE EXECUTORS OF WILLIAM GRAY, DEFENDANTS IN ERROR
• Decision Date: 01 January 1832
• Court: United States Supreme Court

31 U.S. 151

6 Pet. 151

8 L.Ed. 352

SETH SPRING AND OTHERS, PLAINTIFFS IN ERROR v. THE EXECUTORS OF WILLIAM GRAY, DEFENDANTS IN ERROR.

January Term, 1832

ERROR to the circuit court of the United States for the district of Maine.

This action was originally instituted in March 1829, by the plaintiffs in error, who survived Andrew M. Spring, their copartner, in the court of common pleas of the county of York, in the state of Maine, by process of attachment; and was removed to the circuit court of the United States, upon the petition of the defendants.

The action was assumpsit; and in the declaration the first count was for the balance of an account current, which account was annexed to the writ. The second count was for money had and received.

The defendants pleaded the general issue, which was joined; and also the statute of limitations. The plaintiffs, to their pleas of the statute, replied that 'the accounts and promises arose from such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants;' and issue was taken on the replication.

The declaration described the plaintiffs as copartners on the 1st day of July 1821, 'transacting business as merchants in the name of Seth Spring and Company.' The defendants' intestate was described as 'William Gray, late of Boston, deceased.'

The account annexed to the writ was as follows:-

Dr. William Gray, Esq., of Boston,Mass., in account with Seth

Spring & Sons.

Cr.

1810, Sept. For loss sustained on the 1811. By amount of the

sloop Fanny, Capt. Ebenezer Jordan, outward cargo of the

master, which said Gray insured 2,500.00 barque Morning Star, as

1811, Oct. For 35,000 gals. olive per original invoice

oil, in casks, delivered from barque and bills of lading 35,202 83

Morning Star, Wm. Nason, master, By his half the profits

in Boston, at $1.25 per gal. 43,750 00 of said Morning Star's

For 127 cases do., delivered by same 1,270 00 voyage 14,469 03

For 53,803 lbs. cotton, left with Mr. 1829. By balance now due

Lear, in Algiers, and afterwards from estate of said

paid for by the Dey of Algiers to William Gray 34,477 45

received by said Gray, 30 cents

per lb. 16,140 90

For cash paid by Andrew M. Spring to

Bainbridge & Brown, merchants,

England, and by them placed to

credit of William Gray 2,000 00

For cash paid by Andrew M. Spring's

commissions 2 1/2 per cent, on

said barque's outward cargo, as

per agreement 880 00

1829. For interest, on loss on Fanny,

19 years 2,850 00

For interest on one-half the profits

of Morning Star's voyage, as per

agreement 14,758 41

JOHN MUSSEY, Clerk.

This account grew out of a special contract between the parties; and the evidence and instructions of the court to the jury were set forth in a bill of exceptions; which stated that the plaintiffs, to maintain the issues on their part, offered in evidence and read to the jury:

A bill of lading of the outward cargo of the Morning Star, signed by Andrew M. Spring, with the amount of contract on the back of it, signed by William Gray and Seth Spring and Sons. The bill of lading was in the usual form, and stipulated that the cargo should be delivered at Algiers, to Andrew M. Spring, the freight to be paid as per agreement indorsed on the same. The agreement was as follows:

The proceeds of the within cargo, amounting to thirty-five thousand two hundred and two dollars eighty-three cents, as per invoice, costs and charges, is to be invested in Algiers or some other port (after deducting all charges, consignee's commission included, except freight and premium of insurance within, of which two last mentioned charges are to be made on the goods), and returned in the said barque Morning Star to Boston, when Seth Spring and Sons (owners of said barque) are to recover one half of the net profits thereon, in lieu of freight and primage, the voyage round. The consignee's commissions to be two and a half per cent on the sales of the within cargo; and no commissions to be charged in Boston except what is paid an auctioneer.

SETH SPRING AND SONS,

WILLIAM GRAY.

$35,202 83.

Also letters of instructions addressed by William Gray to Andrew M. Spring, relative to the voyage of the Morning Star; and also the correspondence on the accounts of Andrew M. Spring, and of the consignees and others relative to the transaction. The plaintiffs' counsel having closed their evidence, they were inquired of by the court whether they had any other cause of action than such as arose from the bill of lading of the outward cargo of the barque Morning Star, and the contract indorsed thereon; answered that they had not.

And thereupon the defendants' counsel moved the court to instruct the jury, that inasmuch as the plaintiffs had admitted that their whole cause of action arose from said bill of lading and contract indorsed thereon; the said bill of lading, and contract, with the other papers, documents, and testimony aforesaid, were not sufficient evidence, in point of law, to maintain the issue joined on the part of the plaintiffs in respect to their replication of merchants' accounts.

The plaintiffs' counsel objected to such instructions, and prayed the court to instruct the jury, that the evidence introduced was sufficient to prove, and did prove, the issue last aforesaid on the part of the plaintiffs.

But the court instructed the jury that inasmuch as the plaintiffs had admitted that their whole cause of action arose from said last mentioned bill of lading, and contract indorsed thereon; the said bill of lading and contract, with the other papers, documents, and testimony aforesaid, were not sufficient evidence, in point of law, to maintain the issue last aforesaid on the part of the plaintiffs.

And thereupon the jury returned their verdict for the defendants on this issue; and upon the general issue, they found no verdict.

The court gave a judgment for the defendants; and the plaintiffs prosecuted this writ of error.

The case was argued by Mr Evans for the plaintiffs; and by Mr Webster for the defendants.

The plaintiffs contended, 1. That the question whether the accounts in suit were such as concerned the trade of merchandise, was a question for the jury solely; which they should have been at liberty to consider. And, 2. That the accounts in suit are within the exception of the statute.

For the plaintiffs, it was argued, by Mr Evans, that the direction of the court to return a verdict for the defendants was erroneous; as the question whether the accounts between the plaintiffs and the defendants' testator were, or were not, 'merchants' accounts' was one of fact and not of law; and therefore proper for the jury exclusively. Bass v. Bass, 8 Pickering, 187.

The main question in the case is, whether the account and the agreement, taken together, do not amount to an account between merchant and merchant, within the exception in the statute of limitations of merchants' accounts.

An exception always operates to take a case which comes within it, out of the operation of the enacting clause; and whatever is within the exception is exempted from the effects of the law.

The exemption of merchants' accounts has reference to the character of the parties; and not to the nature of their dealing, or the subject matter of the account between them. The account on which this action is founded, is fully within this principle.

The statute of limitations has sustained various fortunes since its enactment. The dispositions of courts towards its objects have differed, and have frequently changed; and the cases in which it has been permitted to operate, have been diminished or increased, according to the opinion entertained of the policy of the system. At the present period the course of decisions is to restore the law to its full force; and to give all its provisions their full influence. The exception of merchants' accounts is in clear and express terms; and if relieved from the pressure of decided cases, there would be no difficulty in its application to the case before the court. The accounts between the parties, or at least the plaintiffs' account, is one growing out of dealings between them and the defendants' intestate, of a mercantile nature. It has reference to the transportation of merchandise, its sale, and to the reinvestment of the proceeds. The account is not yet closed.

Without going back to the history and progress of the various conflicts which this exception has sustained, it may be proper to state, that in the first instance it was limited to actions of account. At length it was extended to every form of proceeding at law or in equity, where accounts were sought to be recovered; various other questions succeeded, some of which, having a bearing upon that now before the court, are still debatable.

The question how far the exception applies to closed or stated accounts; or whether only to those which are open or current? It it required that some one item shall be within six years?

Several cases maintain the last ground; they are chiefly from the courts of chancery. 2 Ves. 400; 6 Ves. 580; 15 Ves. 199; 19 Ves. 148, 180; 15 Ves. 286; Gilb. Eq. Rep. 224; Bunbury, 217; 5 Johns. Ch. Cases, 522; 2 Eden, 169. There is nothing in the language of the exception to authorise the construction adopted in these cases. Merchants' accounts are excepted, without any limitation as to the period of the items which compose them, or as to the date of the first or last of those items.

On the other hand, there are decisions which maintain the exception, and give it operation; although there is no item in the account within six years. 6 Term Rep. 119; 2 Saunders, 127, 12, 6, 7; 6 Pick. 362; 2 Dall. 264; 2 Yeates, 105; 4 Greenl. 339; 5 Cranch, 15; 3 Wilson, 94.

Thus between the common law decisions and those by the courts of chancery, the exception is entirely annihilated. Both cannot be law; and by some of the authorities, merchants'...