Mr Chief Justice Marshal^
delivered the opinion of the Court.
This cause depends entirely .on the question whether the plaintiffs áre within the exception of the statute of limitations, made in favour of “ such accountsas "concern the trade of merchandise between merchant and merchant.”
The plaintiffs id error brought an action on the case against the defendants, in the proper court of the state of. Maine, [161]*161which was removed by the defendants into the circuit court of the United States for the district of Maine.
The first count was for balance of, accounts annexed to the writ; the second was for money had and received. The defendants pleaded non-assumpsit and the statute of limitations. Issue was joined on the first plea. To the seebnd, the plaintiffs replied that tfie accounts and promises mentioned in the declaration are, and arose from such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants; and issue was joined on this replication.
At the trial the plaintiffs produced the bill of lading of tfie outward cargo of the barque Morning Star, signed by Andrew M. Spring, the master of said barque, with the contract on the back of .it, signed by William Gray, the testator of the defendants, and by Seth Spring and Sons, the plaintiffs and owners of the barque Morning Star; which bill of lading and contract are in these words:
Shipped in good order and well conditioned, by William Gray of .Boston, a native citizen of the United States of America, for his sole account and risk, in and upon the barque called the Morning Star, whereof is master for this present voyage, Andrew M. Spring, now in the harbour of Boston, and bound for Algiers; to say: [The merchandize is here described by marks, numbers and quantities]; being marked and numbered as in the margin, and are to be delivered in like good order and well conditioned at the aforesaid port of Algiers, (the dangers of the seas only excepted), unto Andrew M. Spring,, or to his assigns, he or they paying freight for the said goods, as per agreement indorsed hereon, without'primage or average. In witness whereof, the said master of the said barque hath affirmed to four bills of lading of this tenor and date, one of which being accomplished, the other three then-to stand void. Dated in Boston, May 26^ 1810.
Andrew M. Seeing.
The proceeds of the within cargo, amounting to thirty-five thousand two hundred and two dollars eighty-three cents, as per invoice, costs and-charges, is to be invested in Algiers or some other port (after deducting all charges, consignee’s commission included, except freight and premium of insurance within, of which two last mentioned charges are to be made [162]*162on the goods), and returned in the said barque Morning Star to Boston, when Seth Spring and Sons (owners of said barque) are to recover one half of the net profits thereon, in lieu of freight and primage, the voyage round. The consignee’s commissions to be two and-a half per cent on. the sales of the within cargo; and no commissions to be charged in Boston except what is paid an auctioneer.
Seth Spring & Sons, William Gray.
535,202. £3.
The plaintiffs'also produced several letters and papers from William Gray, the master of the Morning Star, and others, respecting the outward voyage of the barque; "together with the bills-of lading and invoices _of hé.r inward cargo, which was delivered to the defendants. They also produced an account from the books of Seth Spring and Sons, as follows:
Dr. William Gray, Esq., of Boston, Mass., in account with Seth’Spring and Sons. Cr.
When the" plaintiffs had closed their evidence, the court asked whether they had «ny other cause of action than such as arose from the bill of lading of the outward cargo of the barque [163]*163Morning Star, and the contract indorsed thereon; and they answered that they had not.
' The counsel for the defendants then moved the court to instruct the jury that inasmuch as the plaintiffs had admitted that their whole cause of action arose from said bill of lading and contract indorsed thereon, the said bill of lading and contract, with the other papers, documents' and testimony aforesaid, were not sufficient evidence in point of law to maintain the issue joined on the part of the plaintiffs, in respect to their replication of merchants’' accounts.
The plaintiffs’ counsel objected to such instructions, and prayed the court to instruct the jury that the evidence introduced was sufficient to prove, and did prove, the issue joined on the part of the plaintiffs.
The court instructed the jury that inasmuch as the plaintiffs had admitted that their whole cause of action arose from said last mentioned bill of -lading and contract indorsed thereon, the said bill of lading and contract,'with the other papers, documents and testimony aforesaid, were not sufficient evidence in point of law to maintain the issue last aforesaid on the part of the plaintiffs. To this instruction an exception was taken.
A verdict was found for the defendants; and this writof error brings up. the judgment which, was rendered thereon.
The statute of Maine is copied from the 20th of James I., and its words are, “ all actions of account and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, &c. shall be commenced,” &c.
It would seem to be the necessary construction of these words, that the actions on the case to which the exception applies, must be founded on an account. The language of the act conveys the same meaning as if it had been 11 all actions of account, and all actions on the case, other than such as are founded on such account as concerns the trade of merchandise,” &e. The foundation of the adtion must be an account, not a contract.
From' the association of actions on the case, a remedy given by the law for almost every claim for money, and for the redress of every breach of contract not under seal; with actions [164]*164of account, which lie only in a few special cases; it may reasonably be conceived that the legislature had in contemplation to except those actions only for which account would lie. Be this as it may, the words certainly require that the action should be founded on an account. The account must be one “ which concerns the trade .of merchandise.” The case protected by the exception is not every transaction between merchant and merchant, not every account which might exist between them, but it must concern the trade of merchandise. It is not an exemption from the act, attached to the merchant merely as a personal privilege, but an exemption which is conferred on the business, as well as on the persons between whom that business is carried on. The account must concern the trade of merchandise: and this trade must be, not an ordinary traffic between a merchant and any ordinary customers, but between merchant and merchant. This “ trade of merchandise,” which can furnish an account protected by the exception, must be not only between merchant and merchant, but between the plaintiff and defendant. The account — the business of merchandise which produces it — must be between them.
If these propositions be well founded, and we believe they are, let us apply them to the case.
The defendants were undoubtedly merchants. The plaintiffs, Seth Spring and Sons, were also merchants. But they were likewise ship owners. They were the proprietors of vessels which they hired to others for freight. A charter party, a contract by which the owner lets his vessel to another for freight, do.es not change its character because the parties happen to be merchants. It is still a special contract, whereby a compensation is stipulated for a service to be performed; and not an account concerning the trade of merchandise. It is no more “ an account,” and no more connected with “ the trade of merchandise,” than a bill of.exchange or a contract for the rent of a house, or the hire of a carriage, or any other single transaction which might take place between individuals' who happened to be merchants. An entry of it on the books of either could not change its nature, and convert it from an insulated transaction between individuals, into an account concerning the trade of merchand ise, between merchant and merchant. This must depend on the nature and character of the [165]*165transaction, not on the book- in which either party may choose to enter a memorandum or statement of it.
Had the freight contracted for been a sum in gross, or a sum dependent on the space occupied by the cargo; or on its weight, or on any estimate of- its value, it would have been perceived at once to be a claim founded on contract, and not on account.
Is the naturéfof the transaction, varied by the fact, that the freight to be paid by the charterer, [instead of being a specific sum, or a sum to be ascertained by sotae given rule, is dependent on the profits of théadventure? Tliat the salesof theoutward and inward cargo, and all the expenses attendant on the enterprize, must be examined in order to .'ascertain the amount of freight? 'This process must undoubtedly be gone through in an action on the contract, but does its necessity convert the action, which ought to be on the contract, into one founded on an account concerning the trade of merchandise between merchant and merchant? The account of the sales of the outward cargo is to be adjusted between the shipper and his consignee, not between the shipper and the ship owner in his adventitious character of a merchant. So the salhs of the return cargo must be examined in order .to ascertain whether1 any and how much profit has been made,, and whether the ship owner is entitled to any and how much freight. But this account is not founded on trade and merchandise between the owner and affreighter of the vessel. It is founded on the trade of the affreighter alone, to which reference must be made in order to ascertain the amount of freight. Mr Gray could not be considered as the factor of- Seth Spring and S.ons, selling their goods. He was selling his own; and the- relation between them was not that of merchant and-factor, but of charterer and charteree of. a vessel by special contract.
If we were to decide this case on the words of the statute, we should not think that the'plaintiffs had brpught themselves within the exception. . We should not consider the action as founded on “such an account as concerns the trade of-merchandise between merchant and'merehant.*’ .
This opinion is not changed by cases which are to be found in the books.
In Webber v. Tivil, 2 Saunders, 121, the plaintiff’s declaration contained two counts, one in. indebitatus assumpsit for [166]*166money had and received by the defendant for the plaintiff’s use, and for goods, wares and merchandise sold and delivered, and the other on an insimul eomputasset. To the plea of the act of limitations the plaintiff replied, that the money in the several provisions mentioned became due and payable on trade between the plaintiff and defendant as merchants, and wholly concerned merchandise. The defendant demurred, and the rvhole court gave judgment in his favour.
Morton,'Justice, was of opinion, that only actions of account were within the exception. The report does not contain the reasons assigned by the other judges, otherwise than by stating that they were the reasons given by Mr Jones in his argument. These were that the statute intends to except nothing concerning merchandise between merchants,but only accounts current between them, whereas the declaration in the second count was on an account stated and agreed. He-also contended, that the first count did not make-a case to be brought within the exception, it-being only á bargain for wares sold and for money lent;' and although it’concerned merchandise,, and was between merchants, yet that was no reason why it should be excepted out of the statute; for if it should be excepted, by the same reason every contract made between merchants would also be excepted; which was not the intention of the statute; for in the statute accounts between merchants only are excepted, and not contracts likewise. He also contended, that actions of account only were within the exception. This'point has been since overruled, though it seems to have been long considered as settled law.
This case having been decided,,as the reporter informs us, for the reasons assigned by Jones, his argument must be taken as the opinion of the court. It decides, that only accounts, not contracts, between merchants, even although they may concern the trade of merchandise, are within the exception, and that the accounts must be current.
In Cotes v. Harris, at Guildhall, Dennison, Justice, held that the clause in the statute of limitations about merchants’ accounts extended only to cases where there were mutual accounts, and reciprocal demands between two persons. This was only the decision of a single judge; but Mr Justice Buller seems to have given it his sanction, also, by introducing it into his work. [167]*167Bul. Ni. Pri. 150, And Lord Kenyon quoted it with approbation in Cranch v. Kirkman, Peake’s Ni. Pri. 121, adding that he had furnished his note of the case to Mr Justice Buller.
The distinction between an account current and an account stated, has been often taken, 1 Ves. 456; 4 Mod. 105; 2 Ves. 400; 1 Mod. 270; and is now admitted.
The English cases certainly do not oppose the opinion we have formed on the words of the statute.
The American cases, as far as they go, are in favour of it.
In Mandeville v. Wilson, 5 Cr. 15, this court said, that the exception extended to all accounts current, which concerned the trade of merchandise between merchant and merchant. The only addition made in this part of the opinion, to the words used in the statute, is the introduction of the word “ current.” The statute saves “ accounts current.” The opinion proceeds to say that an account closed by the cessation of dealing between the parties, is not an account stated, and that it is not necessary that any of the items should be within five years. This decision maintains the distinction between accounts current and accounts stated.
In Ramchandu against Hammond, 2 Johns. 200, the court determined that the statute of New York, though slightly varying in its language from the English statute, was to be construed in the same mariner, arid “ must be confined to actions on open or current .accounts.” “It must be a direct concern of trade: liquidated demands, or bills and notes which .are only traced up to the trade or merchandise, áre too remote to crime within this description.”
In the ease of Coster et al. v. Murray et al., 5th Johns. Ch. Rep. 522, a purchase of goods was made by the agents of the parties at Copenhagen, and shipped to the defendants, merchants in New York, on joint account under an agreement made by the agents, that the goods should be sold by the defendants, free from commission, and orie-tbird of the proceeds paid to the plaintiffs, who were insurers. The goods were received and sold by the defendants, who mingled the money with their own, and refused to pay say part of it to the plaintiffs, unless on terms to which the plaintiffs would not accede. To a bill filed by the plaintiffs, the defendants pleaded the act of limitations. The plaintiffs contended that the claim was within [168]*168the exception of the. statute in favour of accounts between merchants, and also that it related to the execution of a trust, and was therefore not within the statute.
On the first point, Chancellor Kent said, “to bring a case within the exception of the statute, there must be mutual accounts, and reciprocal demands between two persons,
“In the present case there was no account current between the parties. There are no mutual and reciprocal demands.”
“ The defendants took charge of and agreed to be accountable for some goods, or the proceeds thereof, in which the parties had a joint interest; and as concerns the parties, and as between them, this hardly seems to be a trade of merchandise between merchant and merchant.”
The chancellor took a very elaborate review of all the English cases in which this, exception had been discussed. Many of them went off on other points, many were indecisive, and some of them seem to be opposed to each other, though not on the precise question which has been argued in this case.
He concluded this review by observing? “assuming the case before me to be one that concerned the trade of merchandise between merchant and merchant, I should rather be iaclined to think the statute was well pleaded, and that the case did not fall within the exception.”
A decree was made in favour of the plaintiff on the other point, from which the defendant appealed to the court of errors.
The cause was argued on several points, the first of which was, “whether it came within the exception of the statute concerning the trade of merchandise between merchant and merchant, their factors or servants.”
Mr Chief Justice Spencer said the chancellor had examined the case very elaborately, and had come to the conclusion that the statute was well pleaded; and that the case does not fall within the exception. He added, “ whether the statute is at all applicable to a case of mutual dealing and mutual credits between merchant and merchant, is a question not now necessary to be decided, because the present is not a case of that kind. On the part of the respondents, this is no account at all. This is a case of an account merely on the part of the appellants; there is no selling or trading, it is a case of a joint purchase of [169]*169goods, where one of the purchasers takes the whole goods, and is to account for one-third of the proceeds. In such a case, where the items of an account are all on one side, in my judgment it is not within the reason or principle of the exception; which must have intended open and current accounts, where there was mutual dealing and mutual.credits.