Campbell v. Campbell

• Decision Date: 15 October 1872
• Citation: 25 Mich. 463
• Court: Michigan Supreme Court
• Parties: Mary White v. Colin Campbell and others

25 Mich. 463

Mary White v. Colin Campbell and others

Supreme Court of Michigan

October 15, 1872

Heard July 8, 1872 [Syllabus Material]

Error to Wayne Circuit.

C. A Kent, for defendants in error, moved to strike the bill of exceptions from the record, and cited: Cleveland v Stein, 14 Mich. 334.

D. B. & H. M. Duffield, contra, cited: Comp. L., 1857, § 4405; Circuit Court Rules Nos. 85, 86; People v. Littlejohn 11 Mich. 60.

It appeared that judgment was rendered April 19, 1871, during the March term; that the time to settle a bill of exceptions in the case, was regularly extended by orders, from time to time, until about July 1, 1871, into the May term; that from that time until February 5, 1872, no order to extend the time was granted, but that, on that day, an order was entered upon an ex parte application of plaintiff in error, extending the time ten days; that within those ten days the bill of exceptions was settled, and signed by the circuit judge; and that the same was filed on the 13th day of February, 1872, but that the settlement thereof was against the objection of defendants in error, that the judge had no power to settle the same at that late day.

The court held that the circuit judge, having once regularly extended the time for settling the bill of exceptions, into a term subsequent to that at which the judgment was rendered, he had full authority to settle the same at any time thereafter, at his discretion.

The facts are sufficiently stated in the opinion. The charge, referred to in the opinion, upon the first subject discussed, was given in response to the plaintiffs' request to charge that, "if the jury find, from the evidence, that the items charged to the defendant, in 1860 and 1861, never were settled, or the amount agreed upon between the parties, until the items charged in 1865 and 1866, the whole constituted one open account current, within the meaning of the statute of limitations," and was as follows:

"That is, perhaps, substantially true, but it is not necessary that the parties should agree in writing, that the account was settled; but it is for you to determine what the facts were in connection with this running account. Now, if on the first of October, when Campbell swears that he forbade any further credit being given, or something of that kind--you will recollect the testimony--and the account was then made out and delivered to her, or given to her in some way, if that was admitted, by all the parties concerned, to be an end of the account, and it was then closed up, then, of course that account would be closed; and if you believe that he delivered the bill to her of these items, and she made no complaint for five or six years --this was in 1861, and nothing more was done with the account until 1865, she receiving the account and accepting it--then that would be very strong evidence for you to take into account, whether they did not, both of them, understand that that was the account between them, and that it there closed, and the account was settled between them, so far as the amounts, and items, etc., were concerned. Now, if you shall find, that at the time this account was delivered, the parties understood that was the end of the account, and if at that time, instead of the end of the six months, the amount then became due, that would be a settlement of that account. If you also find that she moved away not until the 15th of November, six years thereafter, the amount of the first bill would be outlawed; and if you find those facts, the plaintiff could not recover for the first bill. So far as that question is concerned, of course, you must take into account the facts of the account being presented at that time--Campbell swearing, I think, that he told her she could have no more goods."

The defendant's requests upon this point, which were refused, were:

"1. That the account sued on is not a mutual and open account, within the meaning of the statute of limitations, and plaintiffs can only recover for such items as appear to have been sold within six years before suit was begun, or some disability to sue occurred.

"3. That under the testimony of plaintiffs themselves, the first account became due and was rendered October 1st, 1861, and the statute began to run from that time without waiting any credit."

Judgment affirmed, with costs.

D. B. & H. M. Duffield, for plaintiff in error.

Walker & Kent, for defendants in error.

OPINION

Graves, J.

This was an action for goods sold and delivered. The defense was the statute of limitations. The plaintiff recovered, and the defendant, Mrs. White, has brought error.

The first question relates to a series of items in account charged between July, 1860, and November, 1861, which, it is claimed, were resolved into a stated account, before the subsequent dealing, and left to the operation of the statute.

In reference to this the plaintiffs gave evidence conducing to show that Mrs. White agreed that the goods she purchased, should be charged to, and paid for, by her; that she should have a credit on such goods until the end of each period of six months, during which they should be purchased; that between July, 1860, and November, 1861, they sold her goods to an amount exceeding seven hundred dollars, of which an amount of about two hundred dollars, were sold between July 1st and November 1st, 1861; that the goods were charged to her in their books; that she repeatedly promised payment, but neglected to make it; that in October, 1861, the credit was stopped by them, a bill rendered to her, and further credit refused; that no more goods were sold to her, on credit, until September, 1865; that between that time and August, 1866, she purchased other goods, on credit, to an amount of about seventy-five dollars; that these last articles were not regularly sold to her, but purchased of the clerks, contrary to order, and charged in certain account books of the plaintiffs below, and not set down in the regular day-book or blotter; that separate bills were rendered for the last series of items, and not referring to the old account; that the bills were made out separately because Mrs. White had declined paying for the first mentioned goods, and defendants in error hoped that, by presenting separate bills, payment might be obtained.

The evidence for Mrs. White, on this subject, tended to show that she never promised to pay for the goods, and that no credit was ever agreed upon, or promised to her. Upon this evidence Mrs. White could not rightly require that the jury should be peremptorily instructed, that the first account had been settled, or had ceased to be an open one, in the sense in which the phrase "open account," is used in the statute. If the account had ceased to be an open one, it must have been because the circumstances had converted it into an account stated. There is no suggestion that the balance had been adjusted in any way, and consequently, the account could not have been settled.

The conversion of an open account into an account stated, is an operation by which the parties assent to a sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account. The parties may still impeach it for fraud or mistake. But so long as it is not impeached, the agreed statement serves in place of the original account, as the foundation of an action. It becomes an original demand, and amounts to an express promise to pay the actual sum stated. The creditor becomes entitled to recover the agreed balance, in an action based on the fact of its acknowledgment by the debtor, upon an adjustment of their respective claims: Ashley v. Hill, 6 Conn. 246. The effect of the operation is said to be much the same as though the debtor had given his note for the balance: Bass v. Bass, 8 Pick. 187.

Bearing in mind the nature of the operation, and its effect upon the account, and on the rights of the parties, the proposition is plain, that a mere rendering of an account, or a cessation of it by the death of one of the parties, or a bare discontinuance of the dealings, will not make the account a stated one: Bass v. Bass, 8 Pick. 187; Mandeville v. Wilson, 9 U.S. 15, 5 Cranch 15; Toland v. Sprague, 12 Pet. 330-334. Such circumstances afford no evidence of any mutual understanding by the parties of the truth of the account, or the agreement upon a sum to stand as a balance.

The position of the counsel for Mrs. White is, that by the presentation of the first account to her, and subsequent silence and inaction by her in respect to it, that account became a stated one through her acquiescence, and therefore so closed as to sustain her defense to it under the statute. It...