Maloney v. Bartlett

Opinion by Mr. Justice Fell, The plaintiffs sued to recover a balance claimed to be due for merchandise sold and work done. The business transactions between the parties extended over a period of four years, and during this time three notes were given by the defendant to the plaintiffs on account of his indebtedness. Two of these notes were paid at maturity, and the payment of the third, a judgment note for $250, was refused on the ground that the whole amount thereof was not due. A judgment entered upon this note was opened and an issue awarded, the trial of which resulted in a verdict for the plaintiffs for $120. Goods to a small amount were purchased after the date of the third note, and upon the trial of the case now before us the plaintiffs attempted to establish their claim by proof of the whole account from the beginning, conceding a credit of $250, the amount of the third note,, although only $120 had been paid upon it. None of the notes given were intended to cover specific items of charge, or to include the whole amount then due. They were given upon the account generally, and without reference to the exact indebtedness. At the trial of the issue to determine the amount, if any, due upon the judgment note, the defense was want of consideration, and there was necessarily an examination of that part of the account which was prior in date to the note. By the terms of that issue the note was to stand as a declaration, and there could not have been a recovery for goods sold after its date. The question was whether at the date of the note the defendant was indebted on the account. , The jury found that he was indebted, but in an amount less than the note. The finding concluded the parties, and neither could retry the question in another suit; but as there could.not have been a recovery at the [288] trial of the feigned issue for charges in the account after the date of the note, there was no adjudication as to them. They were recoverable in this action, and the direction to the jury which is the subject of the sixth assignment of error was erroneous, and the assignment must be sustained. The remaining assignments relate to the exclusion of testimony which was offered to establish the whole account, and it is unnecessary to consider them further than to say that the ruling in relation to the bar of the statute of limitations was not correct. The action was to recover the balance upon a general account; and it was competent for the plaintiffs to show that the payments had been appropriated to the earlier items. They might without proof have rested upon the legal presumption, and the line should not have been drawn arbitrarily at the period of six years. The judgment is reversed with a venire facias de novo.