Kennedy v. Drake

Pierce, J. The agreed facts and reasonable inferences of fact prove a bailment and not a sale of the bags and sacks in which the grain sold to Drake was contained. Hunt v. Wyman, 100 Mass. 198. The system of bookkeeping makes it plain that the charge entries of bags and sacks were but memoranda of their delivery without change of title to Drake, to be returned within a reasonable time. Hunt v. Wyman, supra. The credit items are not evidence sufficient to warrant a finding of a sale to Drake and a resale to Dean. Such would not be the result if the transaction indicated an intention to make a present sale with an option to return, under the provisions of the sales act, St. 1908, c. 237, § 19, Rule 3, (1). The credit of $10.64 for pine boards was made by a teamster and laborer, Hill, upon one of Dean’s books called a “scratch book.” The teamster was not the bookkeeper, and no facts are found to warrant a finding that he had any authority to make an entry against the interest of his employer. Moreover, there are no facts sufficient to prove that Dean ordered the boards of Drake, that he ever knew that Drake had sent them, or that he ever ratified the action of Hill. It is clear on the facts that Drake had no legal claim against Dean for the value of the boards, founded upon an express or implied promise of Dean or of any authorized agent of Dean to pay for them. It follows that there was not a mutual agreement to set off mutual debts in.the matter of the credit for sacks and bags or in that of the alleged sale of boards. Accordingly we are of opinion that the judge ruled rightly that there was no mutual and open account current between the parties. Safford v. Barney, 121 Mass. 300. Eldridge v. Smith, 144 Mass. 35. Kingsley v. Delano, 169 Mass. 285. We are of opinion that the cash payment of $140 made on November 22, 1907, “on acct. of grain,” and credited on November 23, 1907, to Drake on general account, was a payment on [308] general account and not a special payment to the grain items of the account. The effect of that payment upon the general account consisting of many items, some of which were barred by the statute of limitations, was to renew all obligations of that account so far as they wyere not barred by the statute. Pond v. Williams, 1 Gray, 630. Roscoe v. Hale, 7 Gray, 274. Ramsay v. Warner, 97 Mass. 8, 13, 14. To renew the barred obligations the payment “must be made by the defendant, specifically on account of the debt thus barred;' because it is, by implication, the payment of part of a larger subsisting debt, and therefore it is an admission, a conclusive admission on the part of the debtor, of the actual existence of the balance, as a subsisting debt, notwithstanding the lapse of time, and the legal operation of the statute; from this acknowledgment of the defendant, the law implies a new promise, which prevents the operation of the statute. But to effect this, the payment must be specifically made or directed by the defendant.” Pond v. Williams, 1 Gray, 630 at page 635, and cases cited. Ramsay v. Warner, ubi supra. Haynes v. Nice, 100 Mass. 327. Haskell v. Manson, 200 Mass. 599. Blake v. Sawyer, 83 Maine, 129. There are no facts to warrant a finding that the payment of November 22, 1907, or any subsequent payment, was made specifically to be applied to items of account at that time barred by the statute. It follows that the account commencing with items of November 22, 1901, was renewed by the payment on general account on November 22, 1907; and that all items of the account before that date are barred.. The report presents the alternative of the finding of a certain sum in case the items of the account before April 8, 1904, (the point of time being six years and thirty days before the death of Drake), are not barred by the statute; and the finding of a certain other sum if they are barred. Manifestly, this agreement was drawn under a misapprehension of the effect of a general payment upon an account some of the items of which were barred by the statute. The facts present a third possible alternative sum, data for the determination of which are not afforded by the agreed facts. The entry should be judgment for the plaintiff in the sum of $1,014.03 with costs, unless within sixty days from the filing of the rescript the justice of the Superior Court before whom the [309] trial occurred shall decide that under these circumstances justice requires a new trial and enters an order to that effect. Delano v. Smith, 206 Mass. 365, 372. So ordered.