Chace v. Trafford

Wells, J. An “ account stated ” is an acknowledgment of the existing condition of liability between the parties. From it the law implies a promise to pay whatever balance is thus acknowledged to be due. It thereby becomes a new and independent cause of action, so far as that a recovery may be had upon it without setting forth or proving the separate items of liability from which the balance results. Under the law as it existed prior to the St. of 9 Geo. IV. c. 14, in England, and the St. of 1834, o. 182, in this Commonwealth, the limitation of the right of action would run, in all cases, from the date of the account stated. The original debt, though barred by the statute, in this case, at the time of the account stated, furnished sufficient consideration for the express promise relied on. Little v. Blunt, 9 Pick. 488, 492. That promise was oral merely; and we infer from the report that there was no promise or acknowledgment contained in any writing signed by the defendant. Here lies the difficulty in the plaintiff’s case. It is provided by the Gen. Sts. c. 155, § 13, that “ no acknowledgment or promise shall be evidence of a new or continuing contract whereby to take a case out of the operation of the provisions of this chapter,” (relating to the limitation of personal actions,) “ or to deprive a party of the benefit thereof, unless such acknowledgment or promise is made or contained by or in some writing signed by the party chargeable thereby." See St. of 1834, c. 182. The promise, whether express or implied, which sustains and is involved in a declaration upon an insimul computassent, is such “ a new or continuing contract.” The statute does not forbid its proof by unsigned writings and oral promises or acknowledgments ; but only provides that such proof shall not operate to take the case out of the general rule of limitation. The argument for the plaintiff is that this provision applies only to suits brought upon the original cause of action, in which [533] the new promise is relied on to defeat the plea of the statute; and not to a case like the present, which is brought upon the new cause of action itself. But we think its application does not depend upon the order of the pleadings. It is a rule of evidence, not of pleading. In other cases, it is true, the suit is ordinarily brought upon the original cause of action without alleging the new promise. But when the new promise is proved, in reply to the plea of the statute, the suit is maintained only on the ground that the cause of action upon which the judgment is to be rendered has accrued within the period of limitation. Gen. Sts. c. 155, § 11 Little v. Blunt, 9 Pick. 488. The original cause of action is brought forward to the date of the new promise, which includes it as its subject matter. With proper recitals and allegations, the action might be maintained upon the new promise in all cases; at least, in all cases where it is expressed. Such a change in the form of the declaration would clearly not enable the plaintiff to avoid the plea of the statute, or to meet it with evidence which would not otherwise have availed him. Penniman v. Rotch, 3 Met. 216, 221. The action upon an insimul computassent stands substantially upon the same footing in this respect. It is in effect a suit for the balance due upon an adjustment of the several claims between the parties. The form of the count as prescribed in the Gen. Sts. c. 129, § 87, is that the defendant owes the plaintiff a certain sum “ for the balance found due to the plaintiff by the parties on accounting together.” The accounting together does not change the character of the claim, but only settles the amount of the balance due. Rundlett v. Weeber, 3 Gray, 263. Any promise to pay a sum certain as and for the balance due from the defendant to tlie plaintiff would sustain this count. 1 Saund. Pl. & Ev. 44. Charman v. Henshaw, 15 Gray, 293. 2 Greenl. Ev. § 126. On the other hand, every action upon an account, even though the plaintiff sets forth only his own charges without the corresponding credits, is regarded as brought to recover the balance of account due, so far at least as respects the application of the rules of law for the limitation of actions. Cogswell v. Dolliver, 2 Mass. 217. Penniman v. Rotch, 3 Met. 216. The application of the statute must depend upon the rights of the parties as established by the facts of the case, and not upon their formal position [534] in the suit. We are satisfied that the provision above quoted was intended and should be construed to require that any acknowledgment, promise or statement of account, relied on to sustain a claim for a balance upon previously existing liabilities, under an insimul computassent, must be supported by the evidence of some writing signed by the party to be charged, in order to avoid the defence of the statute of limitations, which would otherwise have been a bar to the claim for such balance. Such also appears to be the rule in England under the St. 9 Geo. IV. c. 14. Angell on Lim. § 274. There being no such writing in this case, according to the terms of the report there must be Judgment for the defendant.