Sperry v. Moore's Estate
| Decision Date | 06 January 1880 |
| Court | Michigan Supreme Court |
| Parties | LAVILLE P. SPERRY v. ESTATE OF FRANKLIN MOORE. |
Certain transactions relied upon as taking the claim in question in this case out of the operation of the statute of limitations considered and held insufficient. Where a claim is barred by the statute of limitations it can be revived only by some promise or acknowledgment in writing. An account stated, in which no such writing is given or made, will not revive such claim. Upon an open and mutual account the statute runs from the date of the last item in such account. To make the testimony of a witness admissible, opportunity for cross-examination must be given the adverse party. Where such party was, without any fault on his part, deprived of such right, as by the death of the witness after his examination in chief and before cross-examination was had, held, that the evidence was properly excluded.
Error to Wayne.
Moore & Moore, for plaintiff in error.
Becker & Cutcheon, for defendant in error.
Sperry brought this proceeding to establish a claim against the estate of the late Franklin Moore. The matter was contested before the claim commissioners, and there disallowed, and on appeal to the circuit court the jury also rejected it. The claimant then brought the case into this court for revision and he alleges sixty-one errors. His counsel refers to a portion only, but reminds the court that none are waived. He derives his title to what he seeks to recover by assignment from his father-in-law, William B. Stewart, made March 16 1876, and when he launched the proceeding he set forth his demand as $40,000 due him as assignee of William B. Stewart from the estate of Franklin Moore, deceased, "upon an open account between said Stewart and said Moore deceased."
The demand so defined and stated was explained in detail by an accompanying bill of particulars. When the investigation was going on before the commissioners the claimant put his assignor upon the stand, but before the estate had opportunity to cross-examine the witness was found dead. Following that event the claimant amended his demand by setting up a charge for an amount of $3,900, ascertained and agreed upon in November, 1875, as due from Moore to Stewart on an adjustment of mutual accounts between them, including the account in the bill of particulars.
The assignment from William B. Stewart to claimant, and which is the source of claimant's title, and the limit of his right, is confined to specific dates or transactions, and it arranges what it assumes to transfer under two heads:
First. Such balance of account, in favor of William B. Stewart and against Franklin Moore, as existed at the date of the assignment, for lumbering by William B. Stewart, and for lumbering by Robert Stewart & Co.; and in looking and locating pine lands, in running logs, in tracing trespassers on lands, for cash paid on current expenses, for moneys advanced on Franklin Moore's business, and for interest on accounts due.
Second. All balances due at the date of the assignment for dealings between William B. Stewart and Franklin Moore, from May 1, 1864, to March 16, 1876, and all accounts of dealings between said parties within that interval.
It is not proposed to see how far the claim, as detailed in the bill of particulars, can find proper support in the assignment. But one thing will not escape notice. The assignment excludes all pretense of an assumption to transfer any right accruing for services, except for services furnished by William B. Stewart or by the firm of Robert Stewart & Co., and that the original statement of claim excludes everything not belonging to an open account between William B. Stewart and Franklin Moore, whilst the charge introduced by amendment shuts out all matters except a balance struck on an adjustment of their mutual accounts by their mutual agreement. There is no occasion to trace out the consequences of these considerations.
One of the main objections raised against the claim is that it is barred by the statute of limitations, and this ground of defence is sufficiently serious to warrant an examination of the case, in view of it, before proceeding to any other question. If the objection is as complete and far-reaching as supposed it must substantially put an end to the case.
We find the record singular in not giving the time of Mr. Moore's death. But there is ground for inferring that it was later than 1876, and as the brief for the defence fixes it on the seventeenth of January, 1877, we are inclined to consider that as the true time. Certainly, the claimant cannot object.
The statute of limitations bars all actions of assumpsit or on the case founded on any contract or liability, express or implied, unless commenced within six years next after the cause of action has accrued, (Comp.Laws, � 7148,) and the cause of action is deemed to have accrued in actions to recover the balance due upon a mutual and open account current at the time of the last item proved in such account, (� 7152,) and in case a claim set up against an estate has become barred, the law forbids its allowance. Comp.Laws, � 4428.
The application of the general provisions of the statute of limitations to cases against estates is obvious and unquestioned. Such cases are distinctly contemplated. Section 7157.
The present action must be first considered in that shape which was originally given to it by the claimant. At the outset, as already noticed, he preferred his claim as one for the balance due him as assignee of William B. Stewart, upon an open account between William B. Stewart and Franklin Moore.
Now, there is no pretence of any proof of an item of such an account of later date than nine years or more previous to Mr. Moore's death, unless three matters to be noticed presently are considered as exceptions. And if it be contended that during the intervening period Mr. Moore made any promises or acknowledgment which ought to cut off the defence, the answer is conclusive.
The statute is explicit that in such cases no acknowledgement or promise shall be evidence of a continuing contract, whereby to take a case out of the provisions of the chapter, or to deprive any party of the benefit thereof, unless such acknowledgement or promise be made or contained by or in some writing signed by the party to be charged thereby, (� 7160;) and there is no claim that Mr. Moore during the time mentioned made any written promise or acknowledgement.
We shall not stop to see whether all the components of the supposed account are properly matters of account, but proceed to notice the three transactions which are claimed to have vitalized the whole series of dealings. The first consists of a...
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