Van de Wiele v. Koch

• Decision Date: 09 September 1970
• Citation: 256 Or. 349,472 P.2d 803
• Parties: Clement L. VAN de WIELE and Elizabeth M. Van de Wiele, doing business as St. Paul Market, Appellants, v. Lawrence J. KOCH and Gladys L. Koch, Respondents.
• Court: Oregon Supreme Court

Page 803

472 P.2d 803

256 Or. 349

Clement L. VAN de WIELE and Elizabeth M. Van de Wiele, doing

business as St. Paul Market, Appellants, v. Lawrence J. KOCH and Gladys L. Koch, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted July 16, 1970.

Decided July 29, 1970.

Rehearing Denied Sept. 9, 1970.

John A. Bryan, Salem, argued the cause for appellants. With him on the briefs were DeArmond, Sherman & Barber, Salem.

Steve Anderson, Salem, argued the cause and filed a brief for respondents.

Before O'CONNELL, C.J., and SLOAN, ^* HOLMAN and HOWELL, JJ.

HOLMAN, Justice.

This was an action in which plaintiffs sought to recover from defendants the balance of $4,449.37 on a charge account for groceries sold by plaintiffs to defendants. The case was tried by the court without a jury and a judgment was rendered in favor of plaintiffs for only those charges incurred within the six years next preceding the filing of the action. Plaintiffs appealed. The only issue is the application of the statute of limitations to purchases made more than six years prior to the action.

The evidence shows a continuous record of credit purchases from 1951 through January 12, 1963, although defendants had been customers of plaintiffs since 1937. The present action was commenced January 9, 1969. All payments were credited to the balance of the account rather than to specific purchases. For a period of four months in 1951 the account showed a credit balance in favor of defendants as the result of one advance payment made by them on their account. Usually, the account was paid monthly until November of 1959, at which time it was current. In 1959, because of financial difficulties, defendants requested and received credit for a greater period of time and in return therefor agreed to pay interest on the unpaid balance of the account. Neither the length of time during which credit was to be extended without payment nor the amount of credit was specified. Subsequent to November 1959 groceries were purchased continuously by defendants until January 12, 1963, but during that time only one payment was made. This payment was $2,500 and was made in January of 1962, more than six years prior to the commencement of the action. At the time of this payment, the account was approximately $4,350. There is no evidence of any demand for payment from November 1959 to the termination of purchases, but statements showing the balance were sent every two to three months.

Plaintiffs' contention is that the statute of limitations ran on the entire account from the last purchase rather than on each purchase from the time it was made. The trial court held to the contrary. Plaintiffs urge that their action falls within the purview of ORS 12.090, which provides as follows:

'In an action to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side; but whenever a period of more than one year shall elapse between any of a series of items or demands, they are not to be deemed such an account.'

It is our opinion that the account was not the kind of account contemplated by the statute. A mutual account is usually considered to be one in which each party to the account has extended credit to the other and in which there have been reciprocal demands by the parties. See cases compiled in Annot., 1 A.L.R. 1060 at 1066. We recognize that there is a minority of courts which hold that the making of payments on an account is sufficient to make the account mutual. See cases 1 A.L.R. 1060 at 1069. However, the wording of the Oregon statute which requires 'reciprocal demands' indicates that the legislature intended other than that held by the minority. 6 Williston on Contracts § 2030, 5695--97 (rev. ed. 1938) states:

'Where there is a mutual account between the parties with items of credit and debit for each party, the Statute will run only from the date of the last item of the account, though an action might have been maintained on any of the items separately. This rule, which was adopted by the courts of the United States from early decisions in England, has been abolished by statute in the latter country. In the United States, however, the rule has often been incorporated into the local statutes; * * * it is...