Prenatt v. Runyon

• Decision Date: 26 May 1859
• Parties: Prenatt v. Runyon
• Court: Indiana Supreme Court

12 Ind. 174

Prenatt v. Runyon

Supreme Court of Indiana

May 26, 1859

APPEAL from the Vigo Court of Common Pleas.

The judgment is reversed with costs. Cause remanded for a new trial.

J. W Gordon, H. W. Harrington, and W. K. Edwards, for appellant.

T. H Nelson, for appellee.

OPINION

Worden J.

Action by the appellant against the appellee, on an account for goods sold and delivered.

The defendant answered--

1. By general denial.

2. That the cause of action did not accrue within six years next before the commencement of the suit.

3 Payment.

To the second paragraph of the answer the plaintiff replied as follows, viz.:

"That the cause of action did not accrue within six years before the commencement of this action, for that some of the items on either side, as set forth in the plaintiff's bill of particulars, are within six years before the commencement of this suit. The plaintiff says that this action is brought to recover money due and payable upon a running, open, and unsettled account of merchandise between the parties as merchants, that the following items of said account were sold and delivered by the plaintiff to the defendant, upon orders in writing executed by the defendant, viz.: [Here follow sundry dates of orders and amounts, making 106 dollars 76 cents,] which said orders are filed in this cause with the plaintiff's answer to interrogatories, and referred to."

Issue was taken on the answer of payment, and a trial was had by the Court, resulting in a finding for the plaintiff for 201 dollars, the amount of his claim. On motion of defendant, the finding was set aside and a new trial granted. Plaintiff excepted. The cause was again tried, by a jury, and a verdict returned for the plaintiff for 21 dollars 92 cents. Plaintiff moved for a new trial, but his motion was overruled and judgment entered on the verdict.

The ruling of the Court, in setting aside its finding and granting a new trial, is, among other things, assigned for error; but as this point is not noticed in appellant's brief, it will be deemed waived.

The reasons filed by the plaintiff for a new trial are, that the verdict is contrary to the law and the evidence; and alleged error of the Court in giving and withholding instructions.

The plaintiff's account, sued on, consists of various items of merchandise, groceries, and liquors, commencing May 15, 1850, and ending January 4, 1851. The suit was commenced December 22, 1856. Two items of the account, only, accrued after the 22d of December, 1850. These items consist of four barrels of whisky, amounting, with drayage, to 41 dollars 92 cents. The entire account amounts to 386 dollars, from which is deducted the amount of sundry credits given, leaving a balance of 201 dollars.

The plaintiff proved a good portion of his account, and his testimony had a strong tendency to prove the whole of it. No payments were proven subsequent to December 22, 1850. One witness, however, testifies that he has seen a receipt, dated in the latter part of December, 1850, and after the 22d, from the plaintiff to the defendant, for between 20 and 25 dollars (which has been lost or mislaid by the defendant). This, as the witness thinks, was not an account, but a receipted bill.

The plaintiff gave in evidence five several orders, the first one of which will serve as a sample of the whole, as follows, viz.:

"Vernon, July 14, 1850.

"Mr. F. Prenatt, Sir: I want you to send me two barrels of whisky as soon as possible, and I will be down this week and pay you for the same. By so doing you will much oblige, Yours,

[Signed] Israel Runyon."

The orders were all for whisky (amounting to eleven barrels), and some other articles, and all contained a promise to "be down and pay."

It is apparent that the jury excluded all of the account prior to December 22, 1850, as the verdict is for the amount subsequent to that time, less the lowest sum mentioned by the witness, as the amount of the receipted bill.

Error is assigned upon several rulings of the Court in giving and withholding instructions, but we have not examined them carefully (excepting such as will be noticed hereafter), for the reason that we think the verdict right, and in consonance with the law and the evidence, unless the plaintiff was entitled to recover for the goods sold upon the written orders.

The statute provides "that in an action brought to recover a balance due upon a mutual, open, and current account between the parties the cause of action shall be deemed to have accrued from the date of the last item proved in the account on either side."

It is insisted that, as the last item proven was within the period limited, the statute only run from that date, and, therefore, none of the account was barred.

The items of the account were all on one side, there being none on the other except credits of payment. We think the terms "mutual, open, and current account," mean something more than charges on one side, and credits of payment on the other. In the language of an elementary writer, "mutual accounts are made up of matters of set-off. There must be a mutual credit, founded on a subsisting debt, on the one side, or an express or implied agreement for a set-off of mutual debts. * * * There must be a mutual, or as it has been expressed, an alternate course of dealing. Where payments on account are made by one party, for which credit is given by the other, it is an account without reciprocity, and only upon one side." Ang. on Limit., 3d ed., § 149. Again, at § 148, "The rule, that items within six years draw after them other items beyond that period, is, by all the cases strictly confined to mutual accounts between two parties, which show a reciprocity of dealing. Or, in other words, if the items in the account are all on one side, as between a tradesman and his customer, and there be some items within the six years, but the others are beyond that period, the former will not entitle the plaintiff to give evidence of the latter." Vide, also, Brackenridge v. Baltzell, 1 Ind. 333.

There being no mutuality in the account between the parties, the statute cuts off so much as accrued more than six years before the commencement of the suit, unless otherwise taken out of its operation.

A question is raised by the instructions, and argued by counsel, as to the effect of part payment of the account within the six years. The evidence, we think, totally fails to show any such payment as would take the case out of the statute, and, therefore, it is needless to inquire whether the instructions were correct. The only evidence on that point is the testimony of the witness who saw a "receipted bill" in the possession of the defendant. This "receipted bill" would probably be evidence that the goods specified in the receipt were paid for. But it would prove nothing as to the other and prior articles in the account.

The statute having provided that new promises, to take a case out of the statute, must be in writing, enacts that nothing in the preceding section shall take away or lessen the effect of any payment made by any person. 2 R. S. p. 78, §§ 220, 223.

Under similar statutory provisions (Geo. iv, ch. 14), it has been held in England, that a part payment of a debt would not take a case out of the statute, unless there was also a promise in writing to pay the remainder. Ang. on Limit., 3d ed., note to § 240. We do not, however, feel called upon to decide in this case, whether such should be the construction of our own statute. But in the following propositions, laid down in Lippets v. Heane, 1 C. M. and R. 252 (vide note above cited), we fully concur, and think they are decisive of the question under consideration in the case at bar:

"In order to take a case out of the statute of limitations by a part payment, it must appear, in the first place, that the payment was made on account of the debt. Secondly, it must appear that it was made on account of the debt for which the action is brought. But the case must go further; for it is necessary, in the third place, to show that the payment was made as part payment of a greater debt; because the principle upon which a part payment takes a case out of the statute is, that it admits a greater debt to be due at the time of the payment. Unless it amounts to an admission that more is due, it cannot operate as an admission of any still existing debt."

Tested by these principles, it is very evident that the testimony fell far short of proving such a payment as would take the case out of the statute.

At the proper time the plaintiff asked the following instruction, viz.:

"If the jury believe from the evidence, that any part of the account sued on was for personal property sold and delivered by the plaintiff to the defendant on orders in writing, executed by the defendant, and said orders contain a promise to pay for such part of said account so sold and delivered, so much of the account sold on said orders, is not barred by the statute of limitations."

This was refused as asked, but given with the addition--"If sold and delivered within six years."

The defendant asked, and the Court gave, the following, viz.:

"Under the issues in this case, the plaintiff cannot offer evidence of a written contract for the sale of goods, which would require a longer period than six years to bar the action, and the written orders offered in evidence in this...