Compton v. Bowns

51 N.Y. St. Rep. 497

• Court: New York City Court
• Decided: March 17, 1893
• Status: Published

Opinions

McGown, J.

The action was brought to recover the sum of six hundred and forty-eight 28-100 dollars ($648.28), being a balance claimed by him to be due from defendant, for services rendered as agent or broker, in the sale of certain cargoes of coal, between the 3d day of April, 1879, to or about the 18th day of August, 1881.

It appeared from Schedule A., forming part of the complaint, that the total amount of the commission claimed during the above period was the sum of........................... $9,366 56 And from Schedule B. that the total amount of pay-

ments made was the sum of................... 8,718 28

Leaving the balance as claimed by plaintiff, of .. $648 28

It also appeared by said Schedule B. that the last payment made by defendant was made on the 7th day of June, 1882, amounting to $366.42.

• The defense set up by the answer was that the coal was consigned to the plaintiff for sale, upon the agreement that the plain - tiff should sell the same as the agent of the defendant, receiving for his commissions and compensation such sums as he might obtain upon the sales, over and above the sums the various cargoes were invoiced at to him, and that plaintiff in consideration thereof guaranteed to the defendant that defendant should receive in any event the whole amount of said invoiced prices, and ihat any losses, by reason of nonpayment or otherwise, should be borne by the plaintiff.

Defendant, in his answer, also alleged that he had paid plaintiff in full before the commencement of the action, and that the cause of action set up in the complaint did not accrue within six years before the commencement of the action.

And further sets up as a counterclaim moneys claimed to be due from plaintiff for coal consigned to plaintiff, and not paid for to defendant.

Upon the trial it was conceded that:

Plaintiff’s sales or commissions amount to.......... $9,168 41

And that the conceded payments amount to........ 8,748 28

Leaving the amount claimed by plaintiff, exclusive of interest, of.................................. $420 13

And six items in dispute amounting to............ 474 58

Upon which six items evidence was given upon the trial, on the part of both plaintiff and defendant

Defendant, in his brief submitted, as stated therein: “ rests his right to a new trial exclusively upon the rulings of the court, respecting the application of the statute of limitations.’’

After the plaintiff had- rested, defendant’s counsel moved to dismiss the complaint, upon the ground that the claim of plaintiff was barred by the statute of limitations; that the amount paid by defendant to plaintiff, on June 7, 1882, of $366.42, was a payment in full, and not a part payment on account to take the debt out of the statute of limitations, and which motion was renewed at the close of the case; which motions were denied; to which rulings defendant excepted.

The issues of fact thus presented by the evidence for submission to the jury were as to the terms of the employment of the plaintiff by the defendant, and as to the amount for which plaintiff was entitled to recover.

These issues were fully and fairly submitted to the jury by the trial justice in his charge, who also at the request of defendant further charged: “That the payment made June 7, 1882, would not operate to take the plaintiff’s claim out of the operation of the statute of limitations unless it was made as a part payment of a larger debt due from the defendant to the plaintiff, and if it was a payment only of the precise sum admitted to be due by the plaintiff, its payment would furnish no evidence of a promise to pay any larger or different sum out of the operation of the statute of limitations;” thus submitting a further issue to be passed upon, viz.: whether the payment of $366.42 made June 7, 1882, was made as a part payment of a larger debt, or as a payment in full.

The burden of proof was upon the defendant, payment in full having been set up as an affirmative defense in the answer; all the evidence as to the accounts between the parties, as to payment, and as to the alleged counterclaim, was before the jury, and in rendering their verdict in favor of the plaintiff they found in plaintiff’s favor upon all the issues submitted, including therein that the payment of J une 7, 1882, “ was made as a part payment of a larger debt,” and not a payment in full.

The presumption is that the jury fully understood the charge of the trial justice; that they considered it in determining upon their verdict, and that they carefully and honestly discharged their duty.

The trial justice clearly, in substance, instructed them that unless the payment of June 7th was made as a part payment of a larger debt, that the plaintiff could not recover.

It is conceded that the last payment was made by the defendant on June 7, 1882, and that the action was commenced on June 7, 1888.

The statute of limitations does not begin to run until after the date of the last item proved on the account of either side. Code, § 386. See, also, Green v. Disbrow, 79 N. Y., 1; Davison v. Budlong, 40 Hun, 247; Lawrence v. Harrington, 122 N. Y., 415; 33 St. Rep., 717.

The action, having been commenced on the day of the last payment, was commenced in time.

The only exceptions taken herein were upon the rulings of the trial justice in denying defendant’s motion to dismiss.

Such rulings were correct, and there is no merit in the exceptions.

The jury having found in favor of plaintiff upon the evidence submitted, we see no reason why we should disturb their verdict, and we think the verdict was fully justified by the evidence.

The judgment and order appealed-from must be affirmed, with costs to the respondent. ¡,

Ehrlich, CE. J., concurs.