Green v. Disbrow

By the Court— Miller, P. J. It is insisted by the defendant’s counsel that the evidence introduced upon the trial of this action does not warrant the conclusion, at which the referee arrived, that the goods delivered to Jonathan W. Disbrow, the defendant’s son, were delivered at the special instance and request of the defendant, and upon his sole credit and his express promise to pay for the same. There was evidence upon the trial to prove that the defendant originally, in 1851, told his son to go to the plaintiff’s store and procure what articles he required, and when he settled his own bill the defendant would settle that. This — 388 — was communicated to the plaintiff, the articles charged in the account to the defendant, marked for the son; and defendant, in 1852, requested the plaintiff to keep the account separate for convenience, so that he would not be obliged to g’o all over the books and examine the items, stating that he expected to settle the account the same as if they were charged directly to him. The charges were then made to the son, and the defendant settled accounts, kept in that way, twice, once on the 4th of April, 1853, and again on the 31st of October, 1855; and on the 12th of January, 1858, there is evidence to show that the defendant made a payment of fifty dollars upon the account in question. He saw the books containing the account against his son frequently between November, 1855, and 1863, and when the account run up to $800 the defendant looked it over, said it was large, and that what they, referring to his son and family, had at one time they could not have at another. During the whole period, while the account was accruing, the son lived on his father’s farm, which was carried on for the benefit and under the control of the defendant. There was also testimony that for fourteen years, while the son worked the farm, he received no specified amount for his services. He boarded the hands without charge. The wages of the hired girl were paid by his father, who furnished groceries of his own without their being measured or weighed, directed others to be purchased of plaintiff, and the proceeds of the farm were turned over to the defendant. There is also evidence of the declarations of the defendant recognizing the claim of the plaintiff. True, the testimony is conflicting on most of the material facts, and it is a strong circumstance against the validity of the plaintiff’s claim against the defendant that it was charged upon the books to the son, and was allowed to remain until nearly barred by the statute of limitations before any suit was brought. These were matters, however, for the consideration of the referee; and as it is not entirely apparent that his conclusion is entirely adverse to the — 389 — weight of the evidence, it should not, be disturbed in this respect, unless some legal rule has been violated. I am inclined to think that this has not been done, and that there was sufficient evidence to warrant the finding that there was not only a request by the defendant to the plaintiff to deliver the goods, but a promise to pay, kept alive and continued by acts and declarations, as well as by circumstances, showing that the son was merely a servant of the defendant, and that the goods were really furnished for the benefit of the latter. Although the fact that the goods were charged directly to the son upon the plaintiff’s books, unexplained, establishes that the sole credit was not given to the defendant, the accompanying explanation that this was done at the defendant’s request, as a matter of convenience, and to distinguish the account from the articles delivered to the defendant personally, rebuts any presumption arising from the manner in which the charges were made. The whole credit, therefore, according to the finding of the referee, which is, I think, warranted by the facts, was given to the defendant and not to his son, and the promise made was direct and not collateral to any liability of the son. In fact, it would be clearly erroneous to allow a party who had induced a merchant to keep an account in the name of another, in order to distinguish it as a separate matter, to claim, in the face of proof showing that such was the ease, that the undertaking to pay was collateral. It is always competent to explain acts of this character, and, when satisfactorily done, there is no reason why they should bear a different interpretation from what is authorized by the evidence. It is further claimed that all of the items of the account which accrued prior to June 23, 1863, are barred by the statute of limitations. This depends upon the fact whether there was an open current and mutual account and reciprocal demands between the parties. There are credits on several occasions in 1858, — 390 — 1860,1861 and 1862, for butter and eggs delivered by defendant’s son to the plaintiff, amounting in all to between twelve and thirteen dollars; the last credits in 1862, on the tenth and thirteenth of June and the twentieth of August amounting to two dollars and fifty-nine cents. In regard to these credits the wife of the defendant’s son testifies to a conversation in which the defendant stated that if they had more eggs and butter than they wanted that they should send them to the plaintiff and let him apply them upon the account. There is evidence to show that the defendant saw the credits on the books, and asked what they w^re, and, upon being told, made no objection, thus indirectly assenting to what had been done. Afterward, as we have seen, if the testimony is to be believed on that point, he promised to pay the account. There is evidence to show that one of the cows was given to the wife of the defendant’s son by her father, and the other the father pointed out and told the son he could have; that the defendant bought about a dozen fowls and put them on the farm, and the rest were furnished by the son, there being generally thirty or forty there. The son sold some twenty-six of the fowls at one time. Jonathan’s wife testifies that the fowls belonged to the farm and to the defendant. The exact time is not stated when the arrangement was made as to these different articles of property, and it may be assumed, I think, that it was at or about the time when the son took possession of the farm in 1851. The manner in which the business of the farm was conducted by the son, as the agent of "and for the benefit of the defendant, without recognizing the right of any one but the defendant, as the owner of any portion of the property, as well as the assent of the defendant to these credits upon the books, all tend to establish that the articles were considered and delivered as the property and with the assent and approbation of the defendant. Nor do I think the delivery of these articles, under the <,ir — 391 — eumstances, can be considered as a payment upon the account. They constituted a delivery of goods in the usual and customary manner, where two parties have mutual dealings, and a current account exists between them. If it were otherwise, then every delivery of goods would constitute a payment, and mutual accounts could scarcely be proved and established under any circumstances. One item of credit alone is held to make the account mutual, and take the case out of the statute. (Penniman v. Rotch, 3 Metc., 216; see also Kimball v. Brown, 7 Wend, 322; Norton, v. Laus, 30 Cal. 126; Code, § 95.) The authorities relied upon by the defendant do not, I think, sustain the position contended for or controvert the views expressed. The bill of items of the accounts was competent as a copy of memoranda showing what charges were actually made, if for no other purpose. The case does not show that it was admitted as evidence absolutely, although perhaps it is fair to assume that it was. The books of account, the admission of which was restricted and confined to original entries in the blotters, and so much of the entries in the day-books as were transcribed from the lost blotters, were also competent as memoranda of entries made by the witnesses who testified to the delivery of these items of the account. Witnesses have a right, to examine entries made by them, for the purpose of refreshing their recollection, and to read the same from the books. (Gilbert v. Sage, 5 Lansing, 290; Marclay v. Shults, 29 N. Y., 351; Philbin v. Patrick, 6 Abb. [N. S.], 284.) Most of the charges were proved by the plaintiff and his clerks, and although the plaintiff testifies that perhaps one or two others of his clerks may have made some entries, whose names are not remembered, and who stayed but a short time, this may detract from the weight of the testimony, but does not exclude entirely from consideration such portion of the entries as is sustained by competent proof. The evidence as to defendant’s son having no property was competent, as showing the improbability of the plaintiff’s trusting him for so large an amount. It is but a cireum — 392 — stance trivial of itself, but bearing somewhat upon the question involved. The contents of the letter to defendant’s son was also admissible; and the loss, of the letter was, I think, sufficiently proved to authorize the admission of secondary evidence. The testimony showing that, upon other occasions, the defendant had paid similar debts, contracted by his son, was proper upon the question of agency, and of the son’s authority to contract debts for his father. Several acts of this kind may tend to establish that such authority existed; and, although the question is a close one, I am inclined to think that there was no error in the admission of the evidence. The motion for a nonsuit was properly denied. The testimony as to plaintiff’s custom in charging interest was, I think, properly admitted. (Reab v. McAllister, 8 Wend., 109; S. C., 4 Wend., 483; Esterly v. Cole, 3 Comst., 502; S. C., 1 Barb., 235.) But the referee erred in allowing such interest, because the proof does not establish the time when the plaintiff communicated to the defendant that such was his custom. The evidence of the defendant’s knowledge is very slight. The plaintiff swears that he told defendant that his custom was to charge interest after six months; and he charged him interest on his account, and he paid it. When the plaintiff told him, and when he paid the account, is not stated. If this was after the whole account in question accrued it could be of no avail. If before, it should have been so proved. Nor does it appear how the interest in the account paid was charged. Here, there appears to be a charge of interest every six months; but it is not exactly clear how those various items are made up, or whether interest is not charged upon the interest. In a case similar to the present one, where the plaintiff has delayed bringing a suit until the statute of limitations has nearly run, and where the defendant had denied his liability and repudiated the account, under the circumstances presented, the proof should have been more clear, explicit and satisfactory; and I think — 393 — the referee erred in allowing interest before the action was brought. The plaintiff#was not entitled to interest, as the case stood, until the demand was liquidated; and the demand only bore interest from the time the suit was commenced, which was on the 23d of June, 1869. The amount of interest charged in the account, being $155,50, should be deducted from the whole amount, $993.12, leaving a balance of $837.62, for which, with interest from June 23, 1869, the plaintiff is entitled to judgment. The judgment must therefore be reversed and a new trial granted, with costs to abide the event, unless the plaintiff consents to reduce the amount of the damages to $837.62, with interest to the date of the report from June 23, 1869, in which case the judgment should be affirmed for the last mentioned sum and interest, without costs of appeal to either party.