Godley v. Hopkins

Cobb, P. J. It is not contended that there was any merit in The general ground of the demurrer, but counsel for both sides ■agree, as stated by counsel for defendant in error, that “The question before this court is but a single one, and that is whether said suit, under the allegations made, is barred by the statute of limitation.” In our opinion, it does not matter whether the account involved in this case is a “mutual account,” within the strict legal meaning of that term, or not. The statute of limitation did not begin to run until the cause of action accrued. Taking the allegations of the petition to be true, the statute did not run upon each item of the account, separately, from its date. The plaintiff made ■advances to the defendant, to enable him to make his crops of rice, and these advances were to be paid from the sales of rice grown by the defendant and delivered, as fast as it was produced, to the plaintiff for this purpose. And it seems from the .petition that the defendant was to deliver the rough, or unmilled, rice to the plaintiff, who was to have it prepared for the market and to hold it until the defendant ordered it sold, and then to sell it and apply the net proceeds thereof to the payment of the account which he held against the defendant. It seems clear from this that it was the intention of the parties that the account should not in any •event become due until sufficient time had elapsed for the defendant to grow and harvest the rice, and should not even then become due if the defendant delivered the rice to the plaintiff and chose to exercise his right to direct when it should be sold. This would be true even if the agreement between the parties applied to only •one season and one crop of rice. But the petition, as it .stood after the amendment, alleged that “said agreement contemplated the crop of 1898 and all future crops until otherwise agreed between the parties.” It also alleged that the “defendant verbally promised to pay . . petitioner upon demand after the close of the mutual account;” and further “that any balance due . . petitioner upon said account after the close of said mutual dealings was to be due and payable on demand.” Under these allegations, so long as the parties continued to deal with each other under the agreement between them, no cause of action arose in favor of the plaintiff for the recovery of any balance which the defendant might owe him. The status of the account was to be ascertained and'settled after the close of the dealings between the parties, and any [182] balance then found to be owing by defendant to plaintiff was to be due and payable on demand. Until one or the other, or both, saw fit to terminate the arrangement between them, any balance in the account in favor of the plaintiff was not to fall due. The last item charged against the defendant in the account is dated January 22, 1900; and if their dealings with each other under the alleged agreement came to an end on that date, the account would be barred by the statute, as the suit was filed on September 7, 1904, unless a demand were necessary to bring the debt to maturity. But it does not appear from the account that the dealings of the parties with each other, under the alleged agreement, came to an end on that date; for there are two credits on the account, dated respectively May 16, 1900, and October 15, 1900, each for the amount of a designated number of bushels of rice at a stated price per bushel. It does not appear in either instance when the rice was delivered to the plaintiff. If the rice for which credit is given on October 15, 1900, was delivered by the defendant to the plaintiff, in pursuance of the original agreement between them, and, in accordance with that agreement, was held by the plaintiff until the defendant directed it to be sold, then the parties had not ceased to deal with each other under this agreement, until this rice was sold and its net proceeds applied as a credit on the account. And until this was done, the balance which the defendant owed the plaintiff could not be ascertained, and would not be due by the defendant. Again, as it does not appear when this rice was delivered to the plaintiff, it may be that it was delivered prior to January 22, 1900, to be held until defendant ordered it sold, and its proceeds then applied as a payment upon the account, in which case the plaintiff would not have even been in a position to terminate the agreement on that date and bring suit upon his account; for until the rice was sold the amount for which the defendant would be liable upon the account was an unascertainable balance. Taking the allegations of the petition to be true, it did not affirmatively appear upon the face of the proceeding that the account was barred by the statute of limitations; and the court, therefore, erred in sustaining the demurrer. Judgment reversed. All the Justices concur, except Fish, O. J., absent, and Atkinson, J., disqualified.