Day v. Mayo
| Decision Date | 24 October 1891 |
| Citation | 28 N.E. 898,154 Mass. 472 |
| Parties | DAY et al. v. MAYO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.E. Carpenter, for appellants.
Chas L. Long, for appellee.
This case was submitted to us by the defendant upon a brief without oral agreement, and the only ground taken in defense is that 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 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 mutual and open account current to which the statute gives the peculiar privilege of extending the time of limitation so that it begins to run at the time of the last item proved on the side of the plaintiff, even though all the items on the side of the defendant are of earlier date. Such was the decision in Parker v. Schwartz, 136 Mass. 30, in which no payment had been made by the defendant within the period of limitation, but on the strength of earlier payments the plaintiff sought to bring his case within the special doctrine applicable to the statutory mutual and open account current. No question was involved in that case as to the proper and ordinary effect of a payment, but the court, out of abundant caution,...
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