Penn's Adm'r v. Watson

• Decision Date: 31 October 1854
• Citation: 20 Mo. 13
• Court: Missouri Supreme Court
• Parties: PENN'S ADMINISTRATOR, Defendant in Error, v. WATSON, Plaintiff in Error.^a1

20 Mo. 13

PENN'S ADMINISTRATOR, Defendant in Error,

v.WATSON, Plaintiff in Error.^a1

Supreme Court of Missouri.

October Term, 1854.

1. Where there are mutual running accounts, and the last item on either side is not barred by the statute of limitations, the whole account is saved from the operation of the statute.

2. A plaintiff's books of account kept by a clerk, then absent in a sister state, accompanied by plaintiff's suppletory oath, were held inadmissible evidence in his favor, it not appearing that the entries were made at or near the time of sale.

3. Under the new practice act, the distributee of a solvent estate is not a competent witness for the estate.

4. The provision in the administration law of 1845, that an administrator shall not be an incompetent witness for the estate, as to facts which occurred before his qualification, does not apply when he is at the same time a distributee.

Error to St. Louis Circuit Court.

This was an action brought in April, 1851, by W. P. Penn, administrator of Shad. Penn, deceased, to recover a balance due the intestate on a running account, the particulars of which appear in the opinion of the court. The defendant relied upon the statute of limitations, and also filed an off-set, the particulars of which appear in the opinion. At the trial, the plaintiff offered himself as a witness. On his voir dire he stated that he was a son and one of the heirs of the intestate, and that he believed the estate to be solvent. The court permitted him to testify, to which the defendant excepted. To establish his off-set, the defendant offered his own books of account in evidence, first proving that they had been kept by his sons, who had removed to California. A witness, who had been in the habit of dealing with defendant, testified to his belief that the books had been correctly kept. The plaintiff offered, with the books, his own suppletory oath. The court refused to permit the books to be read in evidence, to which the defendant excepted. After judgment for plaintiff, defendant appealed.

A. P. & P. B. Garesche, for plaintiff in error.

I. W. P. Penn, being a distributee of the estate, which is solvent, is a party for whose immediate benefit the suit is prosecuted, and an incompetent witness under the code.

II. The defendant's books of original entry, having been shown to have been kept by a person other than himself, were admissible in his favor. (1 Greenl. Ev. § 116; 1 Phill. Ev. ch. 7, § 7.)

III. The statute of limitations was a good defence to those items in plaintiff's account, which accrued more than five years before the commencement of the suit. If this suit had been founded on an open account for goods sold, or a store account, it would have been barred after the lapse of two years. Not being such an account, the doctrine of mutual credits does not apply, unless there are items on both sides within the period of limitation. (2 Greenl. Ev. part 4, § 445.)

No brief filed for defendant in error.

RYLAND, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff, Worden P. Penn, as administrator of S. Penn, jr., deceased, against Ringrose D. Watson, on an account for advertising and for subscription to the Missouri Reporter, extending from January, 1844, up to July 27th, 1846, for the sum of $62 41, on which account are credits for sundries, at different times, during the periods aforesaid, $21 75; products, per orders of W. P. Penn, during August, 1849, $12 10, making credits amount to $33 85, leaving a balance of $28 56 due the estate.

The defendant relies upon the statute of limitations, and called, by his answer, upon the court to allow him the benefit of that statute, and also his set-off against the account. This set-off consists of two orders from the plaintiff, as administrator of the estate of S. Penn, jr., deceased; one is, “for five dollars worth of fruit, vegetables, and other articles, which shall be credited upon your account, due the estate of Shadrach Penn. Jr., deceased.” This order is dated August 16, 1849. The other is dated August 27, 1849, and requests the defendant “to let the bearer have such articles as he may choose, amounting to five or eight dollars, for which he will receipt, and the amount shall be credited on your account due the estate of Shadrach Penn, jr., deceased;”--and an account from March, 1844, up to February 26, 1845, for queensware, &c., amounting to $44 01.

The court refused to declare that the plaintiff's account was barred by the statute of limitations. The court also refused to permit the books of account of the defendant to be read in evidence as proof of the items in the account of the set-off.

Upon the trial, the plaintiff was introduced as a witness, to prove some of the items in the account...