Harrison v. Handley
| Citation | 4 Ky. 443 |
| Parties | Harrison v. Handley. |
| Decision Date | 10 June 1809 |
| Court | Kentucky Court of Appeals |
Plea of statute of limitation of one year to a merchant's account, how to be pleaded.
New assumpsit would take it out of the statute, as in other accounts and dealings.
What sufficient assumpsit or acknowledgment to take it out of the statute.
Interest not allowed on merchant's accounts.
HANDLEY declared against Harrison upon an indebitatus assumpsit for merchandise, upon a quantum valebant for goods, wares and merchandise, upon an indebitatus assumpsit for money had and received and upon an in simul computassent.
The defendant pleaded non-assumpsit, and gave notice of setoff non-assumpsit within five years, and non-assumpsit within one year, averring that Handley was then and there, etc., a merchant, and trading in merchandise, etc. Upon these pleas the plaintiff joined issue that he did assume, that he assumed within five years, that he assumed within one year etc., to pay for the merchandise in the declaration mentioned.
On the trial, several bills of exceptions were taken, and another to the opinion of the Court for overruling a motion for a new trial; out of which several questions are made in this Court which will be noticed in their order.
The first question presented in the order of time is upon the plea of non-assumpsit within one year. It was contended by the counsel for the appellant that the issue was immaterial, because the delivery of the respective articles of merchandise was fixed by the statute as the time at which the computation of the year is to commence; but we think the plea properly pleaded, and responsive to the declaration. The statute uses the expressions, " next after the cause of such suit or action, or the delivery of such goods, wares and merchandise." If a merchant should sell on a credit of eighteen months, it is evident the statute did not mean to bar the action before the cause of action existed; or to prohibit the merchant from selling on such an extensive credit, by tying him down to bring suit within one year from the date of each article. Though it may be questionable whether, in an assumpsit for merchandise to pay on request, as this is, the defendant might not compel the plaintiff to produce his bill of particulars, and object to any proof to show that the goods were sold on a credit; yet the plea of non-assumpsit within one year next before the suing out the writ, is a proper plea of the statute and the same kind of promise which would take other assumpsits out of the statute, would be sufficient to take a merchant's account out of the statute; which is the point made in the first bill of exceptions. But if this issue had been immaterial, the consequence contended for would not have resulted.
We cannot see what connection the service of the subpena upon the witness had with the cause; and as it appears (for anything to the contrary in the record) a mere idle dispute about the service of a subpena on a witness, without any object or end proposed, we shall leave it where we found it.
The third bill of exceptions states that the plaintiff produced the evidence of Silas M'Bee, which was, " that some time in May or June, 1796, he presented an account to William Harrison, amounting to £ 250 or £ > > > > > > 260; that Harrison objected to certain articles in said account; and that after said articles...
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