McArthur v. McCoy

• Decision Date: 29 May 1907
• Citation: 112 N.W. 155,21 S.D. 314
• Parties: McARTHUR v. McCOY.
• Court: South Dakota Supreme Court

112 N.W. 155

21 S.D. 314

McARTHUR v. McCOY.

Supreme Court of South Dakota

May 29, 1907

Appeal from Circuit Court, Brown County.

Action by Fred J. McArthur, successor, etc., against E. F. McCoy. From a judgment for plaintiff, defendant appeals. Reversed.

L. W Crofoot, for appellant.

Taubman Williamson & Herreid, for respondent.

FULLER P. J.

This action was commenced on the 17th day of August, 1903, to recover the amount of the following items of account, less $22 paid and credited thereon September 7, 1896:

1896 Jul. 28. To one Harvester King Header	$127.00
Jul. 29. Setting up header	$3.00
Dec. 22. Expense of man and team trying to collect George B
Daley's note, at request of E. F. McCoy	$ 2.50
1897 May 3. One C. 486	$50
Aug. 18. One 1460	$1.00
One 1062	$60
	-------
	$134.60

The only point saved for review and relied upon to reverse respondent's judgment for all that he claimed in the complaint is that the entire amount, except the two items charged August 18, 1897, was barred by the six-year statutory limitation. As respondent testified in effect that he sold the machinery on a cash basis, and refused to take a note in settlement therefor and sent a bill with repairs when shipped, there is no merit in the contention of his counsel that the statute has not run because indefinite credit was extended and payment has not been demanded. That the account is mutual, open, and current, showing reciprocal demands between the parties, and that the cause of action did not accrue before the date of the last two items of $1.60, is the theory upon which the jury was thus instructed: "Some testimony has been given in this case in regard to the statute of limitations-that is, whether the account of the plaintiff is outlawed or not-and the court instructs the jury in this connection that the court is of the opinion, as a matter of law, from the undisputed evidence in this case, that the account is not outlawed, or, as the lawyers say, it is not barred by the statute of limitations."

It being conceded that the partial payment of $22 was made about seven years prior to the commencement of the action, and that respondent was entitled to recover for the last two items because the action was commenced one day before the expiration of six years from their date, the controlling question of law to be determined is whether the purchase at that time operated to bring all the other items within the six-year limitation by virtue of the following statutory provision: "In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side." Section 64, Rev. Code Civ. Proc. This doctrine emanated from the courts of equity where the view was entertained that every item of a mutual account in the nature of a reciprocal demand was an admission of an unsettled course of dealing between the parties, but it was not held applicable to a case like the one before us. The history of the rule that seems to prevail with or without a statute is given in Bouvier's Law Dictionary, and the practice thereunder is thus exemplified: "Where the items of account are all on one side, as between a shopkeeper and his customer, and where goods are charged and payments credited, there is no mutuality, and the statute bars the account." In the case of Boylan v. Steam Boat Victory, 40 Mo. 245 Angel on Limitation of Actions is cited in support of the following: "The true rule is held to be that where there are mutual charges and transactions, reciprocal demands between the parties, so that it is...