Day v. Mayo

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: ALLEN
• Citation: 28 N.E. 898,154 Mass. 472
• Decision Date: 24 October 1891
• Parties: DAY et al. v. MAYO.

154 Mass. 472
28 N.E. 898

DAY et al.
v.
MAYO.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 24, 1891.

Appeal from superior court, Hampden county.

Action of contract on agreed statement of facts brought by Day, Jobson & Co. against Amaziah Mayo, Jr. There was judgment for defendant. Plaintiffs appeal. Reversed.

[154 Mass. 473]F.E. Carpenter, for appellants.

Chas. L. Long, for appellee.

ALLEN, J.

This case was submitted to us by the defendant upon a brief, without oral agreement, and the only ground taken in defense is that “no fact is shown which can be claimed to take the account out of the operation of the statute of limitations, except the fact that a payment of $100 has been made on the account within six years. Such a payment will not so operate;” citing Parker v. Schwartz, 136 Mass. 30, as an authority in support of the proposition. This argument, however, is founded upon a misapprehension of the scope of that decision; and, since the justice of the superior court who heard the present case appears to have shared in that misapprehension, a restatement of the rules applicable to that case and to this may be expedient. A statutory provision has long been in force in this commonwealth, that, in actions brought “to recover the balance due upon a mutual and open account current, the cause of action shall be deemed to have accrued at the time of the last item proved in such account.” Rev.St. c. 120, § 5; Gen.St. c. 155, § 5; Pub.St. c. 197, § 8. The construction put upon this provision has been that in case of a mutual and open account current, such as is contemplated by the statute, the statute of limitations begins to run at the time of the last item on either side of the account, and in such case a plaintiff may recover the whole balance due to him upon such account, if he proves any item upon his own side, within the period of limitation, although there has been no [154 Mass. 474]item upon the defendant's side of the account within that time. Penniman v. Rotch, 3 Metc.(Mass.) 216; Whipple v. Blackington, 97 Mass. 476;Safford v. Barney, 121 Mass. 300. But an item which is merely a payment made by the defendant on account of the items charged against him by the plaintiff will not have the effect to make the account a mutual and open one, within the meaning of the statute. Such a payment is not a matter of separate and independent charge; it is merely a partial extinguishment of an existing indebtedness. It does not, therefore, create the...