Poague v. Mallory
| Decision Date | 05 December 1921 |
| Docket Number | No. 14181.,14181. |
| Parties | POAGUE v. MALLORY |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Henry County; C. A. Calvird, judge.
Action by Henry F. Poague against John Mallory, executor of John W. Penland, deceased. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
E.A. Gracey, of Clinton, and Culver, Phillip & Voorhees, of St. Joseph, for appellant.
J.C. Hargus, of Kansas City, and Parks & Son, of Clinton, for respondent.
This action originated in the probate court, upon a demand filed against the estate of John W. Penland, deceased, for the aggregate sum of $1,589. This amount is made up of $1,080 alleged to be due for rent of a room occupied by deceased from May 1, 1905, to May 1, 1920, at $6 per month, and $509 for legal services rendered deceased from October 16, 1909, to December 13, 1917. Upon a trial in the circuit court on appeal, the jury returned a verdict in the full amount of the demand; and the executor has appealed.
Penland died April 5, 1920, and the demand was filed May 4 thereafter. The defendant interposed the statute of limitations as to all that part of the claim for rent which had accrued more than five years prior to the institution of the suit. Plaintiff's theory, however, is that, by virtue of section 1322, R. S. 1919, the statute of limitations does not operate to bar any part of the claim. Said section 1322 is in reference to "current accounts," and provides that, in an action to recover the balance due on such an account, the cause of action "shall be deemed to have accrued from the time of the last item in the account on the adverse side."
The account sued on—that is, as it is embodied in the demand—makes no reference to rent except in the first item thereof, which reads as follows:
"(1) For rent of room occupied by deceased
from May 1, 1905 to May 1, 1920, at
six dollars per month............. $1,080.00"
The next item, dated October 1909, is for legal services, and this is followed by 21 other items for legal services, the last item thereof being dated December 13, 1917. In other words, the only mention of rent in the claim as sued upon is in the first item, which is a lump charge of $1,080 therefor, covering a period of 15 years.
Plaintiff introduced in evidence his account book, but, as shown by appellant's abstract, there is no entry therein of a charge for rent, but only for legal services. In other words, the account there shown is one for legal services only, and it contains exactly the same items as in the demand sued on, except that in the account book there is no entry of the first item or lump charge of rent in the sum of $1,080 or any other sum.
Respondent, however, filed an additional abstract, which shows that the account in defendant's book contained an item of rent appearing in the account immediately after two items for legal services dated in July, 1913, and just before another item for legal services of July 30, 1913, which alleged rent item reads as follows:
"July 30, 1913. J. W. Penland amount rent room June 4, 1913, at 6% per month."
Appellant filed objections to said additional abstract, and called our attention to the original bill of exceptions filed in the trial court, which original bill was lodged with the clerk of our court. Said original bill of exceptions shows that the plaintiff's account book, introduced in evidence, contained an account for legal services in the exact form of the account for legal services shown in the demand sued on, but said book account did not contain any mention of rent or item thereof whatever. As the original bill of exceptions, signed by the trial judge, determines what was in fact in the book account introduced in evidence, we must accept the account as it appears without any rent item therein.
Penland held plaintiff's note for $10,000 dated December 4, 1905, due 5 years after date, bearing 6 per cent. compound interest per annum from date until paid. Plaintiff paid interest thereon without deducting anything due him either for rent or for legal services rendered. On April 20, 1912, he paid $1,000 on the principal, reducing it to $9,000. On November 20, 1917, a little over two years before Penland's death, the latter made a written extension of the note for 10 years from December 4, 1917, at 5% per cent. interest. Defendant introduced evidence tending to show that Penland, when asked to make the extension, told plaintiff he would agree to the extension because he had not been charged anything for rent. However, as the verdict was adverse to defendant upon the issue of whether plaintiff intended to charge any rent, doubtless this cannot be accepted as true. There was, however, no evidence nor claim that Penland ever knew plaintiff was charging him any rent. There is no evidence that rent was ever demanded of or charged against Penland until after his death when suit was brought, and then the only entry ever made in relation to rent appears in item 1 of the claim filed as a demand.
There is no evidence tending to show that the parties, i. e., plaintiff and Penland, ever treated the rent, or any charges therefor, as constituting an open mutual, current account so as to bring the rent matter within the meaning of section 1322. In their dealings there were no mutual charges—that is, no charges or debts of Penland against plaintiff offset against the latter's debts to Penland; all of the items of indebtedness in this so-called account are against Penland. This lack of mutuality does not, in and of itself, under our Missouri rule, prevent accumulating indebtedness from becoming an account current within the meaning or said section—
"when the account sued on is a running account, and it is fairly inferable from the conduct of the parties while the account was accruing that the whole was to be regarded as one, as in the case of a merchant's account against a customer." Ring v. Jamison, 66 Mo. 424, 428; Chadwick v. Chadwick, 115 Mo. 581, 586, 22 S. W. 479.
As to the rent, even plaintiff himself did not manifest any intent to formulate it into an open, current, or running account, for he kept no account of it as he did of the legal services rendered, and his own witnesses say no demand was ever made for rent. We do not mean to intimate that accumulating one-sided indebtednesses will not constitute a current account merely because no entry thereof has been made in the form of an account in a book of accounts or some such record. There are numerous cases where an account for long-continued services was allowed as an account current which had never been kept in the shape of an account formally entered in writing upon a record. But in such cases the continued acceptance of the services, under an implied obligation that they would be paid for, together with circumstances showing it could be treated as a running account, and with nothing to interfere with or meet that inference, rendered it permissible to infer from such conduct that the parties contemplated that the matter should be allowed to run and be settled at a future time. In this case, however, there is not only no evidence from which it can be inferred that the sums for rent accruing each month were to go into a running account, but the dealings between the parties rather negative such idea. As said before, there is no evidence that Penland knew he was being charged for rent, and in fact he could not know it, since no charge was in fact ever made until after his death, when suit was brought on a lump charge of $1,080 therefor. And plaintiff paid interest without intimating in any way that Penland owed him. Under these circumstances, the mere fact that Penland occupied the room down to the date of his death does not show that there was any express or implied agreement that the sums accruing each month as rent should go into a current account, and be settled at some future time. In other words, there is no evidence from which it can be said "that the conduct of the parties makes it fairly inferable that it was their intention to have a future adjustment." Earls v. Earls, 182 S. W. 1018, 1020. Unless there was, then the various indebtednesses for rent, accruing each month, did not go into such an account as would save, from the limitation statute, any item of plaintiff's claim for rent which was more than five years old at the time of filing suit. The mere fact that Penland continued to occupy the room down to the day he died did not make that or any other date the accrual date of all the monthly debts for rent.
Nor can it be said that the claim for rent of the room, and the charges for legal services rendered, constitute but a single, open, running account; and as the last item of the account for legal services is dated December 13, 1917, a date within the five-year period, no part of the demand is barred.
The claim for rent and the charges for services do not form one account. As said before, they were not so treated, even by plaintiff, until he came to bring suit. They relate to wholly separate and distinct matters; their characters are entirely different; they have no connection whatever with each other; and the rent was not even kept as an account at all, but only inserted as a lump sum in the claim sued on, as if a demand therefore were being asserted for the first time, which in fact is the case, since plaintiff's own witnesses say no rent was ever demanded of Penland. Under all these circumstances there would seem to be no room for holding that the two, the claim for rent and the account for legal services, can be regarded or treated as one account. Earls v. Earls, supra; Sidway v. Missouri Land, etc., Co., 187 Mo. 649, 670, 86 S. W. 150; Mabary v. Mabary, 173 Mo. App. 437, 448, 158 S. W. 690; 22 Cyc. 1122, note 8. There should be some evidence tending to show that the rent was regarded as a running account before the five-year limitations can be...
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