Dyer v. Walker

51 Me. 104

Opinion

The opinion of the Court was drawn up by

Walton, J.

This is an action of assumpsit upon a note and account. The defendant pleaded the general issue and the statute of limitations. The case was sent to an auditor, who reported that, on the day of the purchase of the plaintiff’s writ, the defendant was indebted to him, for balance of account, five hundred and twenty dollars and seventeen cents.

The defendant claimed that all the items of plaintiff’s account, which had accrued more than six years pridr-to the date of the writ, (June 9, 1862,) were barred by the statute of limitations. This would embrace charges to the amount of four hundred and twenty dollars and forty-one cents, leaving the balance due the plaintiff of only one hundred and three dollars and seventy-six cents.

The plaintiff relies upon the saving clause in the statute of limitations, which provides that " in all actions of debt or assumpsit, to recover the balance due upon a mutual and open account current, the cause of action shall be deemed to accrue at the date, of the last item proved in such account. (R. S., c. 81, § 99.)

The defendant denies that the plaintiff’s action is " to recover the balance due upon a mutual and open account current.” He says that the account between them was not mutual within the meaning of the saving clause above quoted ; that the account is all on one side; that he had no account against the plaintiff, and never made any charges against him ; that the sums credited on the plaintiff’s book were mere payments, — partial payments, — leaving a balance against him; that such partial payments do not create the element of mutuality, which will convert an account on one side only into a mutual account; that, to create the element of mutuality, each must have such charges against the other, as would support an action; that a payment goes to extinguish so much of the other’s claim, but gives no cause of action to the party making the payment.

The auditor was of the opinion that the payments did make the accounts mutual, and reported accordingly. The presiding Judge at Nisi JPrius, being of the same opinion, "ruled that the account was not barred, and ordered judgment for the plaintiff for the amount of the auditor’s report.” The defendant was thereupon defaulted, and the case, by consent, was reported to the full Court, who are to render judgment for the plaintiff if the ruling of the presiding Judge was correct; otherwise the case is to stand for trial.

This Court seems to have held, in Theobald v. Stinson, 38 Maine, 139, that, to create the element of mutuality in accounts, it is necessary that each party should keep a book, and have charges upon it against the other. In that case, the Court say : — " There is no evidence that the defendant’s intestate kept any books, or made any charges whatever. * '* If the defendant's intestate, then, kept no account, the question of mutuality becomes immaterial.” And this is in accordance with the views pf the Supreme Court of New York, in Edmonstone v. Thomson, 15 Wend., 555. In that case, Savage, C. J., speaking for the Court, saysAccounts are mutual where each party makes charges against the other in his books, for property sold, services rendered, or money advanced,” &c.

In this case, it does not appear, and is not claimed, that the defendant kept any account, or had any written charges against the plaintiff. The accounts, then, were not mutual, within the meaning of the saving clause in the statute of limitations ; and the ruling of the presiding Judge was not correct; and the action must stand for trial.

Default taken off.

Action to stand for trial.

Appleton, C. J., Cutting, Kent, Barrows and Dickerson, JJ., concurred.