Parker v. Schwartz
| Decision Date | 20 October 1883 |
| Citation | 136 Mass. 30 |
| Parties | Charles G. Parker v. Louis A. Schwartz, administrator |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Worcester. Contract on an account annexed for $ 177.41, for goods sold and delivered to the defendant's testatrix between December 3, 1872, and January 8, 1875. Writ dated January 6, 1882. Answer, the statute of limitations. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:
The defendant's testatrix died December 13, 1880, and the defendant was appointed on January 3, 1881, administrator with the will annexed, of her estate.
It appeared in evidence that the plaintiff and his son, Charles H. Parker, doing business as copartners under the name of Charles G. Parker & Son, sold to the defendant's testatrix groceries, at sundry times between December 3 1872, and June, 1874, amounting to $ 170.62, which were charged to her in an account, and received from her cash payments from time to time, with which she was credited upon the account, amounting to $ 82.39.
The plaintiff testified, and his evidence was not contradicted or objected to, that on June 19, 1874, his copartnership was dissolved, said account then remaining unsettled; that the plaintiff bought his son's interest in the business, and continued to carry it on in the same place, and became the sole owner of his son's interest in said account; that immediately afterward, the defendant's testatrix sought continued credit of the plaintiff, who declined to sell her goods, or to give her further credit, unless she would agree to pay him said account, and let her account run along as an open mutual account, the same as it was with the copartnership; that she did so agree, and that thereupon, relying upon and in consideration of her agreement, he sold her goods on credit from time to time up to January 8, 1875, charging them to her on account.
It was agreed that she made no payment after the dissolution of the copartnership; and there was no other evidence bearing upon the question of the statute of limitations.
The plaintiff contended, upon this evidence, that the jury might find that there was a mutual and open account current between the plaintiff and the defendant's testatrix, which would take the case out of the statute of limitations; but the judge ruled that the plaintiff could only recover so much of the account as accrued within six years and thirty days prior to the death of the defendant's testatrix.
The jury returned a verdict for the plaintiff in the sum of $ 14.23; and he alleged exceptions.
Exceptions overruled.
W. A. Gile, for the plaintiff.
B. W. Potter, for the defendant.
OPINION
If it could be held, under the evidence in this case, that the effect of the agreement between the plaintiff and the defendant's testatrix was to place his account against her precisely as it would have stood if he had had no partner, this would be the most favorable position for him but the account would not have been a "mutual and open account current," within the meaning of the Gen. Sts. c. 155, § 5. The plaintiff had an account for goods sold and delivered to her,...
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Markiewicz v. Toton
...oral agreement of the parties that it shall be so treated, or by being ‘ ratified,’ or by a mere money payment on account. Parker v. Schwartz, 136 Mass. 30; v. Mayo, 154 Mass. 472, 28 N.E. 898. In the opinion of a majority of the court it cannot be said that this error did not affect the re......
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Snow v. Wood
...555; 125 Ga. 82; 32 Md. 86; 16 Mich. 211. Where an account is not a mutual and open account, the parties cannot make it so by agreement. 136 Mass. 30. The statute limitation is as binding in equity as at law. 47 Ark. 301; 46 Ark. 25; 43 Ark. 469; 20 Ark. 293; 16 Ark. 129. Johnson & Smith, f......
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City of Boston v. Nielsen
...against the defendant and that this account had not been converted into an open mutual account current between the parties. Parker v. Schwartz, 136 Mass. 30 Eldridge v. Smith, 144 Mass. 35. Kingsley v. Delano, 169 Mass. 285 . Harding v. Covell, 217 Mass. 120 . Kennedy v. Drake, 225 Mass. 30......
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Thomsen v. Ward
... ... to reduce the amount of the account, but no debt is owed from ... the first party, there is no mutuality of account. Parker ... v. Schwartz, 136 Mass. 30, 31 (1883) ... This ... comports with the only Maine case on point, Pierce v ... ...