Perry v. Chesley

Virgin, J. By his writ dated in November, 1881, the plaintiff sued the defendant on an account annexed, the debit side of which comprised two hundred and thirty-one items commencing in March, 1848, and ending in March, 1878. From the first item of March, 1848, the account ran on from year to year to the item of March, 1865, when there was an interval of more than twelve years in the account, the next succeeding item being dated, September, 1877. [395] All of the items on the credit side of the account annexed were dated in 1862 and prior thereto, with the exception of one dated September, 1877. The case went to an auditor who disallowed all of the debit items of the plaintiff’s account which were dated after March, 1862, except that of "Sept, term, 1877, to services in trying Yeatou’s case, §25,” which he allowed. But it is admitted in the agreed statement that this last mentioned item was paid at the time in cash by the defendant and a receipt given therefor. This payment of cash is the same as the one mentioned on the credit side of the account, and therefore neither the charge nor the credit should appear in the account; the item having been settled by the parties it was no longer an "unsettled item.” R. S., 1871, c. 81, § 87; Lancey v. M. C. R. R. 72 Maine, 38 ; Penniman v. Rotch, 3 Met. 216, 223. Under this state of facts the action is barred by R. S., 1871, c. 81, § 84. The plaintiff strenuously contends, however, that the item of twenty-five dollars cash was in the defendant’s account together ■with another cash payment of five dollars, and both being dated in September, 1877, and both allowed by the auditor, they or either of them take the whole account, including those items which ante-date the twelve years of non-dealing between the parties. But assuming these two items of credit to be properly allowed and that, in the language of the statute, " the cause of action shall be deemed to have accrued at the time of the last item proved,” we do not understand that those items within six years next before the date of the writ can save from the operation of the statute any other items in the account if there be none within six years of their own date. This precise question was settled in Lancey v. Me. C. R. R. sup. and we see no occasion for disturbing that decision. We are aware that statements may be found in the opinions of courts, several of which are quoted in the plaintiff’s brief, which, if considered as abstract propositions, might seem to aid the plaintiff; but when they are applied to the facts then under consideration, they sustain no such view. [396] There is another answer to the five dollars cash item taken from the defendant’s account. The defendant’s account was never filed in set-off. It was only conditionally considered by the auditor. It is no part of the case, it never having " been ordered by the court” or "expressly embraced in the order,” R. S., c. 82, § 69. The auditor does not find that the parties agreed that the defendant’s account should be allowed in payment of the plaintiff’s ; but he makes an alternative report based upon the court’s finding as to that fact; and no evidence is found in the case bearing upon that point. It is urged that the defendant’s letter of March 2, 1876, brings the case within the provisions of R. S, c. 81, § 97. But we find no " promise ” therein save to " talk it over when the parties meetand no acknowledgment except that the plaintiff owes the defendant "more than $.100.” Lunt v. Stevens, 24 Maine, 538; Weston v. Hodgkins, 136 Mass. 326. Judgment for the defendant. Peters, C. J., Walton, Libbey, Emery and Haskell, JJ,, concurred.