Lowber v. Smith

Rogers, J. Several exceptions are taken to the judgment; but the principal objection is in relation to the plea of the statute of limitations. The court instructed the jury that there were certainly mutual accounts between the parties in the legal sense of that term. The defendant contends that this direction took from the consideration of the jury an important item of evidence on the plea of the statute. It is insisted that the. arrangements between the parties was to effect an exchange of saltpetre for gunpowder; in other words, that Lowber was to receive gunpowder in payment for saltpetre instead of cash; and if so, the statute of limitations barred the action. That there was some evidence on this point, appears from the testimony of William T. Lowber and John R. Wilmer. The question, therefore, is, granting it to be as stated, was there such a mutual account as that one item within six years takes the whole account out of the' statute? This point came before the court in Ingram v. Sherard, 17 Serg. & Rawle, 347, and it was there held that, to constitute a mutual account within the exception of the statute, there must be a reciprocal demand; that it does not apply where the demand is altogether on one side, though payments on account have been made. In the ease cited, the payment was to be made in cash; but whether in cash or in kind, can make no difference. [383] The principle ruled in the case cited is that there must be a reciprocal demand; that is, each party must have a right of action. A mutual account is when each has a demand or right of action against the other, as, for example, when A. & B. dealing together, A. sells B. an article of furniture, or any other commodity, and afterwards B. sells A. property of the same or a different description ; this constitutes a reciprocal demand, because A. and B. have a demand or right of action against each other. But this is not so when the sale is only by one to the other, whether it is to be paid for in cash or in kind; the manner of payment can surely make no difference. Nor will an over-payment alter this result ; for, to ascertain that there is an over-payment, it will be necessary to go into the account, which would introduce the very evil the statute was intended to guard against. I have looked through the charge with the hope that, in some part of it, the evidence on this point was left to the jury, but in vain, as the judgment may be sustained, notwithstanding the other exceptions. As this case goes down for another trial at any rate, the objection may be removed by adding a special count so as to meet the technical difficulties which have been thrown in the plaintiff’s way. Judgment reversed, and venire de novo awarded.