McCain v. Peart

Opinion, Me. Justice Green: The learned court below very properly held that the judgment note given by Brice to Gilpin, and the contemporaneous paper signed by Brice and Gilpin, must be regarded as one transaction, and that, thus regarded, the former was a mere'security for moneys which had been or might be loaned to or paid for Brice. Viewed in that light, the judgment note was in no sense the real cause of action of Gilpin against Brice: and, if no proof had been given for the plaintiff of moneys loaned to or paid for Brice, the plaintiff could have recovered nothing against the defendant, although he held the judgment note of the latter for five thousand dollars. The plaintiff accordingly, and by plain necessity, undertook to establish a real cause of action against the defendant, by giving in evidence proof of numerous items of cash paid to or for the defendant at various times from the year 1868 to 1883. The most of the items were in small sums paid out at various times, principally between the years 1871 and 1881. There were a very few items after 1881. The largest items were from 1871 to 1873. The means of proof were chiefly checks given by Gilpin to Brice, and there were some, but not many, receipts for money signed by Brice. Whether these, receipts expressed anything more than the fact that money was paid by Gilpin to Brice, we do not know, as they are not printed, and we are not acquainted with their contents. All the offers of proof made by the plaintiff, practically were admitted in evidence against the defendant to make out the allegation that moneys were loaned to or paid for Brice by Gilpin. Whether that kind of proof is evidence of indebtedness by the payee to the payer depends upon circumstances. Ordinarily, the mere fact of such pay526 merits, unsupported by any other evidence, proves rather the payment of indebtedness by the payer to the payee than the creation of indebtedness by the payee to the payer. But it is not necessary to consider the subject in that aspect, in the peculiar circumstances of this case. The learned court below, having admitted the proofs above described to make out the plaintiff’s real and only cause of action, was asked to admit various offers of proof by the defendant to the effect that, at the very times when all the payments by Gilpin to Brice were made, Gilpin was indebted to Brice for moneys which Brice had previously deposited with or paid to Gilpin. The proofs of these deposits and payments were of the most conclusive and incontestable character. They consisted of receipts signed by Gilpin, which expressly stated that they were for money received on deposit, or to be invested for Brice at interest, or to be held subject to Brice’s order; and the direct testimony of witnesses who were present and saw money paid by Brice to Gilpin, who agreed to take care of it for Brice ; and of entries made in Gilpin’s own cash-book and ledger, in an account which he there kept with Brice, and in which Brice was credited with numerous items of money which he had paid to Gilpin. The entries of the largest of these items, covering the time from 1871 to 1873, and amounting to nearly two thousand dollars, were made by Gilpin himself in his own handwriting, and all the rest were made from entries in his diaries. This account was balanced from time to time, and showed on its face that Gilpin was at all times indebted to Brice, instead of Brice being indebted to Gilpin, and a large number of the very items which the plaintiff was permitted to recover a verdict for, appear in that account as being payments Brice, simply in reduction of the items of cash credited on the same account as having been received by Gilpin from Brice. That account on the books of Gilpin commenced by a credit to Brice of $701.92 in 1871, and was followed by other credits for cash received' from Brice down to September 13, 1873, all of them in Gilpin’s own handwriting, and making a total of credits of almost one thousand nine hundred dollars, and during that time all the payments made by Gilpin to or for Brice amounted to only $818.19. The account was balanced on November 21, 1873, and the balance due to Brice at that date on Gilpin’s — 527 — ledger account was $1,075.40. That balance was never paid, and Gilpin at all times remained a debtor to Brice to the end of the account. It was' balanced again on September 8, 1879, and again showed a balance to the credit of Brice of $310.40, and that balance was never paid. The account, carried down to the end in 1883, still showed a balance in favor of Brice, although not a single dollar of interest was credited to Brice, and although there was other proof of the payment of very considerable sums by Brice to Gilpin which were never credited to Brice on Gilpin’s books. It happens that very nearly, if not quite all the payments made by Gilpin to Brice, which make up the present claim of the plaintiff, are the very payments which are credited to Brice on Gilpin’s books, and which are there charged against and in payment of the debt which Gil-pin owed to Brice according to his own account. On Gilpin’s books these very items for which the court below not only permitted, but peremptorily directed, a most unwilling jury to return a verdict for the plaintiff, are simply items which go in reduction of Gilpin’s debt to Brice. Thus the account charges Gilpin with a balance of $1,075.40 in favor of Brice on November 21, 1873, and then reduces that balance by the very payments which largely make up the present verdict, to $310.40, on September 3, 1879. It has now resulted, by the verdict of a jury, that while the plaintiff’s own books of account show that the plaintiff is in reality a debtor to the defendant, the defendant is declared to be a debtor to the plaintiff in the sum of $1,492.93 on January 13, 1891. One of the receipts given by Gilpin to Brice was on December 10, 1870, for $613.25, and the receipt says it is “ to bear interest from date.” No interest on that sum was ever credited to Brice, and it amounted at the time of this verdict to over seven hundred and thirty dollars. Another item of cash received from Brice, and credited by Gil-pin in his own account, is eight hundred dollars, on April 2, 1873, and is credited thus: “ By cash to be invested.” The interest on this sum at the time of the verdict was just about nine hundred dollars. Not a penny of this interest was credited on the account; and it thus appears by Gilpin’s own account that the interest alone which he was apparently bound to pay amounted to almost one thousand six hundred dollars on two items alone, and was more than enough to cover every — 528 — item of payment made by Gilpin to Brice. This leaves out of view entirely all the other payments to Gilpin by Brice and which are credited on Gilpin’s books, and also the large sums proved to have been paid and which do not appear to be credited. It may well be asked how such a result as the verdict in this case qould be accomplished in a court of justice. On the trial, when the defendant’s proofs were offered in evidence, the learned court below was of the opinion that the statute of limitations was a bar to all items more than six years old, and also that there was no evidence to show the application of the credits to Brice on Gilpin’s books to the checks and receipts given in evidence against Brice, and therefore rejected the offers. These rulings are founded upon an entire misconception of the operation of the statute of limitations in such a case, and also upon a most erroneous view of the entries in Gilpin’s books. Specifically and directly those entries do show the application by Gilpin of the debits charged against Brice to the payment of Brice’s credits charged against Gilpin. The same account, and on the same book, shows Brice .creditor from April, 1871, to December 11, 1872, in amounts aggregating $831.99, and debtor in amounts aggregating $818.19; and yet for some of those ver}r debit items, although extinguished by Gilpin himself on his own books, a verdict has now been recorded against Brice by the process of excluding his credit- items. But that is not the worst aspect of the account. The credit items immediately following, and in Gilpin’s own handwriting, are, April 2,1873, “ By cash to be deposited, $200; ” and same date, “ By cash to be invested, $800; ” and the account, with four more items of credit, and only one of debit, is closed by deducting the aggregate of the previous debits, $818.19, and one more debit charge of $16.38, from the aggregate of credit items, $1,909.97, and leaving a balance of $1,075.40 to the credit of Brice on November 21, 1873. And yet, the court below refused to allow the defendant to show this state of facts. It is simply impossible for us to assent to any such view of the case, or to permit so grave an error to prevail. As a matter of course, the account, on its face, does show the very thing which the court below said it did not show, to wit, the application by Gilpin himself of Brice’s debits to Gilpin, to the — 529 — extinguishment of Gilpin’s debits to Brice. For the admissibility of these entries in evidence it is not at all necessary that they should be so specific and precise. The entries made by Gilpin, or appearing on his books, are declarations against his interest, and are competent and highly persuasive testimony against the present claim. For that reason alone they should have been received. They are contemporaneous with the items of charge against Brice, sought to be recovered in the present case, and tend to show indebtedness by Gilpin to Brice, and for that reason alone they are admissible in evidence; and it is for the jury, and not at all for the court, to say whether they relate to the present demand. As for the statute of limitations, it has nothing whatever to do with the case, and for different reasons. The account is a continuous and running account, alleged to be, and proof given to show that it was, between attorney and client, never settled by the attorney, and as such the statute has no application : McCoon v. Galbraith, 29 Pa. 293. But, for a still more potential reason, it could not possibly operate as a bar to Brice’s claim against Gilpin; and that is, that the items of charge against Brice were immediately appropriated by Gilpin to pay his own indebtedness to Brice, as fully appears by the entries in his own books. But, in any event, even without these entries, the defendant having offered to prove, by receipts signed by Gilpin, that, prior to any of the payments of money by Gil-pin to Brice, Gilpin had received money from Brice, it was exclusively for the jury, and not in any sense for the court, to say whether those payments by Gilpin to Brice were not payments of indebtedness to Brice, and therefore, the defendant’s offers of proof should have been received. The great majority of the payments by Gilpin to Brice were proved simply by checks for small sums payable to order. There was no proof that they were loans of money. There was abundance of proof outside the book-entries that Gilpin had received, and continued to receive money from Brice on deposit, or to invest it for him, or to take care of it. The court had no right to say, as a matter of law, that the checks from Gilpin to Brice were for moneys loaned or advanced, and then refuse to permit the defendant to prove that there was indebtedness from Gilpin to Brice both before and concurrently with the giving — 530 — of the checks. All these facts were solely for the jury to hear and decide; and then to reject these ' offers to prove such indebtedness, on the ground that the statute of limitations was a bar, was a most serious error. It is as if a debtor should borrow a thousand dollars from his creditor, and then, during seventeen succeeding years, should pay his creditor sixty dollars annually by check payable to order, and at the end of the period should sue his creditor for the whole one thousand and twenty dollars thus paid; and, when the creditor offered to prove that prior to any of these payments he had loaned the debtor a thousand dollars, he should be told by the court that such proof could not be received, because the claim would be barred by the statute. And so the unfortunate creditor'would, by this method, not only lose his debt, but would have a judgment recovered against him for one thousand and twenty dollars by the peremptory direction of a court who would not permit a jury to inquire whether the payments were not payments of interest only, each one of which would be a fresh recognition of the debt. Upon a careful examination of the assignments of error, we are clearly of opinion that we must sustain, as we do, the first, second, third, sixth, eighth, twelfth and thirteenth assignments. There was no reason why the testimony of Mr. Golden should be rejected, and there was every reason why it should be received. The striking out of the testimony of Charles Nichols was the gravest error. He proved in the most precise and positive manner the payment by Brice to Gilpin of one thousand one hundred and fifty dollars in September, 1873 ,• of two hundred and fifty dollars on April 1, 1874; and of two hundred and fifty dollars in April, 1875 ; and another payment o'f two hundred and fifty dollars, the date of which is not given; but the payments amounted in all to one thousand nine hundred dollars, and he also testified that Gilpin offered to take care of it for Brice. The testimony was received and was before the jury, and most distinctly showed an indebtedness by Gilpin to Brice; but at the end of the trial, for some unexplained reason, it was all ruled out. Had the defendant’s offers of testimony been received, as they should have been, we would also have sustained the fourth, fifth, seventh, ninth and tenth assignments, but, the evidence of the matters covered — 531 — by these assignments having been rejected, the questions could not arise. Judgment reversed, and venire de novo awarded.