Shepard v. Klein

• Decision Date: 26 January 1952
• Docket Number: No. 38470,38470
• Citation: 172 Kan. 250,239 P.2d 930
• Court: Kansas Supreme Court
• Parties: SHEPARD v. KLEIN et al.

Page 930

239 P.2d 930

172 Kan. 250

SHEPARD v. KLEIN et al.

No. 38470.

Supreme Court of Kansas.

Jan. 26, 1952.

Rehearing Denied Feb. 2, 1952.

Syllabus by the Court.

Where there is an open, running, mutual account between two persons, each person does not have a separate cause of action for each separate item of the account, but only the person in whose favor there is a balance due on the account has a cause of action for such balance against the other. The statute of limitations does not run against each item separately, but only against the balance due; and it will commence to run only from the time of making the last item rightfully credited to the party against whom the balance is due. Each item thus credited to the party against whom the balance is due is a payment or part payment, not of any particular item against him, but of the balance due against him, and is, in one sense, a payment or part payment of every item rightfully charged against him in the whole account. (Following Waffle v. Short, 25 Kan. 503).

John Berglund, Jr., of Clay Center, argued the cause, and was on the briefs for appellants.

H. L. Sheppeard, of Clay Center, argued the cause and was on the briefs for appellee.

WERTZ, Justice.

This is an action for recovery of money for professional services rendered appellants (defendants below) by appellee, the petition setting out the total bill, the amount paid thereon, and the balance owing. Judgment was for plaintiff (appellee) in the amount of $549.60, the amount sued for, and defendants appeal.

It is conceded that the original action was filed February 14, 1950, and that issues were joined between the parties on plaintiff's third amended petition and defendants' answer and counterclaim thereto. In the petition plaintiff sets out the itemized account showing professional services and medicines furnished beginning July 29, 1943, and ending March 4, 1949, in the amount of $714.10 and showing payments made on the account by defendants on dates from August 23, 1944, to March 4, 1949, in the sum of $164.50, leaving a balance due plaintiff on that date of $549.60.

Upon the court's overruling defendants' demurrer to the petition, defendants filed an answer consisting of a general denial except that defendants admit plaintiff was a duly authorized and licensed physician but allege that part of the services and medicines were wrongfully sold and dispensed by employees of the plaintiff who were not authorized by law to so act. Defendants further admitted the payments made as listed by plaintiff on the dates mentioned in the petition, but stated that defendants did not direct plaintiff to apply said payments on the particular account sued upon, and by way of counterclaim defendants alleged they were entitled to a credit of $41.25 on said account and that plaintiff failed to so credit that amount, and asked for judgment on their counterclaim in the amount of $41.25, or so much thereof as they might be entitled to recover over and above plaintiff's claim. The case was tried on the issues joined, and the jury returned a general verdict in favor of the plaintiff.

Defendants assert error in the overruling of various motions to strike and to make definite and certain. No substantial rights of defendants were affected by the court's rulings and we have repeatedly held that motions to strike and to make definite and certain rest in the sound discretion of the trial court and rulings thereon are not appealable unless they affect a substantial right and...