St. Joseph & Grand Island Railway Co. v. Elwood Grain Co.
| Citation | 203 S.W. 680,199 Mo.App. 432 |
| Parties | ST. JOSEPH & GRAND ISLAND RAILWAY CO., Respondent, v. ELWOOD GRAIN CO., Appellant |
| Decision Date | 29 April 1918 |
| Court | Court of Appeals of Kansas |
Appeal from Buchanan Circuit Court.--Hon. Thos. B. Allen, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John E Dolman and O. E. Schultz for appellant.
Robert A. Brown and Richard L. Douglas for respondent.
Plaintiff's action is based on an account for demurrage for freight due from defendant and for switching service. The cause was referred to a referee who found for the plaintiff $ 476 for demurrage and $ 85.04 for freight. The charges for switching were disallowed. The circuit court approved the referees report and judgment being rendered for plaintiff, defendant appealed.
Plaintiffs account arose primarily from the building of an elevator at Elwood, Kansas, by the defendant near by the tracks of plaintiff's railway. A lengthy contract was drawn between them relating to shipments of grain, and also of a variety of kinds of material used in the construction of the elevator, and repairs thereon. The contract gave defendant various privileges and rights. Out of this grew plaintiff's claim. The question in the case involves the Statute of Limitations of Kansas and Missouri, and, also, what constitutes a running account; and incidentally, whether there is an estoppel against defendant.
The action was begun on the 19th of September, 1914. The account for demurrage began December 7, 1907, and continued down into 1912, a date within the three-year period of limitation prescribed by the Kansas statute. The freight item for four cars of sand, is dated August 6, 1907. The limitation period in Kansas is three years and in this State it is five, the suit having been commenced on the 19th of September, 1914, defendant insists that all items of date more than three years prior to that time, are barred by the Kansas statute, and, as we shall presently see, also by our statute. If defendant is correct, then the freight charge and the principal part of the demurrage charge ought not to have been allowed against it. But plaintiff contends that its entire account was one single matter, made up of different items, that is, that it was an open running account and that the Statute of Limitations did not begin to run until the date of the last item in 1912, which was less than three years before the suit was brought. So this phase of the case depends on the character of the account.
The law in this State is that when the account is a continuos "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 merchants account against a customer, none of the items are barred by the statute unless all are." [Ring v. Jamison, 66 Mo. 424, 428; Chadwick v. Chadwick, 115 Mo. 581, 586, 22 S.W. 479; Sidway v. Land and Live Stock Co., 187 Mo. 649, 669, 86 S.W. 150.]
This leaves to be determined whether, while this claim was accruing, the parties regarded it, and understood it, as constituting one claim, as is the case, for example, of an ordinary merchant's account against a customer. We think it clear from the evidence showing the conduct of the parties, that it was not so understood at that time. For it appears that it was the practice of the plaintiff to render to defendant from day to day, as the service was had, an itemized statement of what was due the plaintiff; that defendant would take such statements, go over them and check off the items which it considered it owned and that it proposed to pay. It would then make out its check to plaintiff for such items, together with a statement of the particular items it was paying and plaintiff then entered on its books as paid, the items so designated by defendant. It appeared in evidence that the items which defendant repudiated were such as it insisted it did not owe under its contract, and for various other reasons. It seems to us apparent that neither of these parties regarded plaintiff's claim at the time of the transactions upon which it is founded, as an open continuous account made up of different items constituting one.
The evidence in plaintiff's behalf shows conclusively that as each service in suit was performed it was then regarded by plaintiff as an accrued claim for which a bill was made out and payment refused by defendant. It must be borne in mind that the bills made out and sent to defendant when the service was performed were not mere memoranda for the information of the purchaser of an account and a credit, the account to continue on, but they were statements of accounts then due for specific charges and payment then demanded. But though not a running open account whereby the last item within the period of limitation would save those older items which are without that period, any of plaintiff's claims that are within the period may be recovered, and we must consider the case from that standpoint. The claim originated in Kansas and was to be performed in that State. Uninfluenced by a statute to the contrary the limitation law of the former (which governs the remedy) applies. But in this State, since the revision of 1899, as we shall presently see, we have had a statute to the contrary. [Sec. 1895, R. S. 1909.]
He must therefore inquire whether plaintiff's claims are barred by the Statute of Limitations of Kansas (prescribing a period of three years).
In this State we have a statute (Sec. 1897, R. S. 1909) excepting certain situations from the general provisions. It reads as follows: "If at any time when any cause of action herein specified accrues against any person who is a resident of this State, and he is absent therefrom, such action may be commenced within the times herein respectively limited, after the return of such person into the State; and if, after such cause of action shall have accrued, such person depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action." The words, "who is a resident of this State," were not originally in the act; they were inserted in 1845. Prior to that time, if the defendant was not a resident of the State when the cause of action accrued, the statute did not begin to run until he became a resident of the State. [King v. Lane, 7 Mo. 241; Tagart v. Indiana, 15 Mo. 209.] But since the insertion of those words, it has been held that the statute began to run when the cause of action accrued, although the defendant was a nonresident. [Thomas v. Black, 22 Mo. 330; Scroggs v. Daugherty, 53 Mo. 497; Fike v. Clark, 55 Mo. 105; Orr v. Wilmarth, 95 Mo. 212, 8 S.W. 258.] We are not advised as to any exceptions to the running of the statutes in Kansas, and must therefore assume the law there is like ours. [Davis v. McColl, 179 Mo.App. 198, 203, 166 S.W. 1113.] Therefore we must hold that notwithstanding defendant was not a resident of Kansas when plaintiff's cause of action accrued against it, and is not now, yet the three-year statute of that State began to run when the cause, or causes, of action accrued, thus barring any action in that State on any claim which had accrued more than three years before this action was begun.
Now, as above stated, we have had since the revision of 1899, a statute (Sec. 1895, R. S. 1909) which reads as follows: "Whenever a cause of action has been fully barred by the laws of the State, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this State."
There can be no mistaking the meaning of that statute and its application to this case. But for such statute the...
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