Somerville v. Missouri Glass Co.

• Decision Date: 06 June 1910
• Citation: 144 Mo. App. 463,129 S.W. 474
• Parties: SOMERVILLE v. MISSOURI GLASS CO.
• Court: Missouri Court of Appeals

129 S.W. 474

144 Mo. App. 463

SOMERVILLE v. MISSOURI GLASS CO.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. LIMITATION OF ACTIONS (§ 53) — AGENCY.

Generally limitations, in cases where the agency is a general and continuing one, begin to run on the principal's right of action against his agent from the time of the termination of the agency, or from the time the agent has rendered an accounting to his principal and offered to settle, or from the time the principal has made a demand on the agent for an accounting and the latter has refused or neglected to render it.

2. LIMITATION OF ACTIONS (§ 53) — DEALINGS BETWEEN PARTNERS — ACCOUNTING.

Where a partner withdrawing from the firm owned a patent on a lamp, and it was agreed that the remaining partner would sell the lamp indefinitely and account for the proceeds, limitations did not start to run on the patent owner's right of action, until the partner selling the lamp had made a statement of the business and delivered it to the other.

3. LIMITATION OF ACTIONS (§ 53) — DEALINGS BETWEEN PARTNERS — ACCOUNTING.

Nor did limitations run against the retiring partner's right to recover for electric toy wheels, and the like, which were left with the remaining partner to be sold in the course of business, until the rendering of the account.

4. LIMITATION OF ACTIONS (§ 54) — DEALINGS BETWEEN PARTNERS — ITEMS OF ACCOUNT.

In such case, the fact that the remaining partner furnished the retiring partner with different items, the claim for the last of which, on its face, was barred by limitations, would not defeat the remaining partner's right to counterclaim for the articles furnished, since there was a running account between them; and the last item of the retiring partner's claim not being barred until the account was rendered, the items of the counterclaim were thereby saved.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by William Somerville against the Missouri Glass Company. From the judgment, both parties appeal. Reversed and remanded.

Geo. W. Lubke and Geo. W. Lubke, Jr., for appellant. Benj. J. Klene, for respondent.

GRAY, J.

This action was commenced before a justice of the peace in the city of St. Louis, on the 8th day of January, 1906, by plaintiff filing an account against the defendant in which it is stated that on January 9, 1901, the defendant became indebted to plaintiff on one item amounting to $396.46, and on September 30, of that year, two items aggregating $100.07. Before the trial in the justice court, the defendant filed a set-off or counterclaim in the nature of an account against the plaintiff, in the sum of $192.66, giving the dates of the items, beginning with March 29, 1900, and ending November 17, of that year.

On appeal to the circuit court, at the conclusion of the evidence, the court sustained a demurrer to both claims on the ground that they were barred by the statute of limitations. From the action of the court both parties appealed to the St. Louis Court of Appeals, and that court, by order made transferred the cause here.

This record raises but one question, and that is: When did the statute of limitations begin to run? This applies to the items of the plaintiff's statement, and also to the entire counterclaim of the defendant. Counsel for both parties agree that the five-year statute of limitations is the one applicable, but disagree as to the point from which the five years shall be computed. Plaintiff contends, with respect to the first item of his account, that the date from which the computation is to be made, is January 12, 1901, while defendant fixes the time in November, 1900. If the plaintiff's date is the correct one, the cause of action was not barred, and the court erred in sustaining the demurrer thereto. If, on the other hand, the account accrued, within the meaning of the law, in November, 1900, then the judgment must be affirmed.

Plaintiff had formerly been connected with the defendant company. Early in 1900 he severed his connection with the company. At this time he became the owner of a patent on what was called the "Night-Sun-Lamp," by assignment from defendant. When plaintiff severed his connection with defendant, it was agreed between them that the sale of the lamps should be continued by ...