Keller v. The President, Directors And Company of Farmers Bank of State of Delaware

• Decision Date: 02 February 1942
• Court: Delaware Superior Court
• Parties: CONRAD KELLER v. THE PRESIDENT, DIRECTORS AND COMPANY OF THE FARMERS BANK OF THE STATE OF DELAWARE, a corporation of the State of Delaware

24 A.2d 539

41 Del. 471

CONRAD KELLER v. THE PRESIDENT, DIRECTORS AND COMPANY OF THE FARMERS BANK OF THE STATE OF DELAWARE, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

February 2, 1942

Superior Court for New Castle County, No. 23, May Term, 1940.

This was an action of assumpsit and the plaintiff claimed damages in the sum of upwards of $ 29,000. The plaintiff, starting with about the year 1924, had two accounts with the defendant bank, a "general" account and a "special" account. He claimed that he was not given credit for large sums that he had deposited with the defendant and had been charged in the books of the bank with large sums which he had not withdrawn. In addition, he claimed that he should have been credited with large sums arising from numerous foreclosures, loan transactions, and proceeds from the sale of real estate formerly owned by plaintiff and bought by the defendant at mortgage foreclosure proceedings and afterwards sold at a profit. The plaintiff also contended that during the years 1930 and 1931 the defendant received all of the proceeds from the plaintiff's large fruit farm, and that these proceeds had not, as agreed, been credited to the plaintiff's account.

The defendant contended that the plaintiff had been given credit for all funds which had come into its hands and for all profit arising from the real estate transactions, and for all proceeds arising from farm management, and that all amounts had been paid. The defendant relied upon the pleas of Payment and Statute of Limitations.

At the trial and during the presentation of the defendant's case there was present in Court a great mass of the records of the defendant bank, through which were interspersed numerous individual items entering into the account. A witness for the defendant presented a "summary" of the records made by him, which was offered in evidence and objected to. It appeared that the summary, while including the items appearing in the books, also contained certain statements and items otherwise appearing in evidence, and allegedly inserted in the summary to make the matter more clear to the jury.

The prayer for a directed verdict is granted.

James R. Morford (of Marvel and Morford) for plaintiff.

Aaron Finger (of Richards, Layton and Finger) for defendant.

RODNEY J., sitting.

OPINION

Rodney, J.

, held "that it is within the sound discretion of a trial court to allow testimony from a summary rather than to compel a party to offer in evidence voluminous records and to trace numerous individual items from many volumes. 4 Wigmore (3rd Edition), sec. 1230; Curry v. Charles Warner Co., 2 Marv. 98, 42 A. 425; Aetna Casualty & Surety Co. v. Mayor and Council of Wilmington, 17 Del. Ch. 285, 157 A. 208. In some cases the witness has been allowed to refresh his recollection from the summary, and in others the summary has been admitted into evidence. For either course to be pursued it is required (1) that the volumes or records from which the summary is made are either in evidence or present in Court, or available, under order of the Court, for any examination that the opposing side might see fit to make, and (2) that the person or persons by whom the summary is made is available for cross examination by the adverse party. The paper, however, sought to be admitted as a summary of voluminous records, and admissible on that ground, must contain only the items or summary of items shown by the records themselves. A party cannot, under the guise of a summary of voluminous records offer in evidence a paper containing matter foreign to the records purported to be summarized, and which may, in written form, contain the contentions of the party, drawn not only from the particular records themselves, but as well from other records or evidence."

The summary was excluded but, being redrawn, was admitted without objection.

At the conclusion of the testimony the defendant prayed that the jury be directed to return a verdict for the defendant, on the ground that every item of the claim of the plaintiff was barred by the Statute of Limitations.

In granting this prayer, Rodney, J., charged the jury, in part, as follows:

This suit is brought by Conrad Keller against the Farmers Bank of the State of Delaware, and the amount claimed by the plaintiff is a large one. It involves not only items of the bank account but also credits of numerous loan transactions and applications from numerous foreclosures and sales of property and of farm management. In the view that I have taken of the matter it is not now necessary to review the various transactions. It is all important to have attention drawn to the undisputed fact that all of the transactions in controversy or as to which any claim is made arose and were completed during the years 1924 to 1931.

The form of action in this case is called assumpsit and the action was brought January 18, 1940. One of the defenses relied upon is the Statute of Limitations of this State, and this statute is found as Sec. 5129 of the Revised Code of 1935, and so far as here material reads: "no action * * * of assumpsit * * * shall be brought after the expiration of three years from the accruing of the cause of such action."

Before considering the effect of the Act some passing attention may be given to its origin and purpose. In Reybold v. Parker, 6 Houst. 544, the history of the Act is set forth, although the date of the first English Act is erroneously stated as 1683, instead of 1623. In the cited case it is shown that our own Delaware Acts may be easily traced to 1742, and the exact language of the present Act was adopted January 30, 1829 (Vol. 7, page 267).

In Boston v. Bradley's Ex'r., 4 Harr. 524, it is said that: "statutes of limitation are founded in wisdom and sound policy. They have been termed statutes of repose, and are regarded as highly beneficial. They proceed on the principle, that it is to the interest of the public to discourage the litigation of old or stale demands; and are designed not merely to raise a presumption of payment, but to afford a security against the prosecution of claims where, from lapse of time, the circumstances showing the true nature or state of the transaction, may have been forgotten; or may be incapable of explanation by reason of the uncertainty of human testimony, the death or removal of witnesses, or the loss of receipts, vouchers, or other papers."

It is therefore certain that under our statute law the action was barred after three years from the accruing of the cause of action, and it becomes most material to see when this cause of action accrued.

Statutes of Limitation begin to run when proper parties are in existence capable of suing and being sued, and a cause of action exists capable of being sued on forthwith.

The ordinary relation of...