E. & H. T. Anthony & Co. v. Savage

BoeemaN, J., delivered the opinion of the court: The complaint contains two counts; the first for a balance due 3d August, 1875, on account for money due and owing from defendant below (appellant here) to the plaintiffs below (respondents here), and the second upon an account stated between the parties on the 7th October, 1874. The answer denies the indebtedness on the first count, and pleads the statute of limitation (four years) thereto. The answer also denies that any account was ever stated [470] between the parties, and denied the alleged promise to pay the amount alleged to bave been found due or any other sum. The cause was submitted to a jury, and verdict had for respondents for the amount claimed, and judgment was given accordingly. Thereupon defendant below appealed to this court. The two counts were both for the same substance matter, and it is alleged that it was error to allow this, and that appellant’s motion to compel respondents to elect upon which count to proceed should have been sustained. It is not necessary for this court now to decide whether or not there are any cases in which two counts for the same matter may be embraced in one complaint. It is evident that this is not one of those cases. When we wade through the mass of matter sent in this record, we find if there was any cause of action, it was simply based upon two certain acceptances, or on a new promise taking the debt out of the statute of limitations. The first count is for a balance of account for money. It is not for the balance due on an open mutual account between the parties, with charges on either side. The proof shows that this balance of account for money was a balance of money due on two certain acceptances, after deducting payments. The entering of the credits does not make the account mutual —showing mutual dealings — so as to require the statute of limitations to run from the last item. Weattenay v. Mill Co., 17 Cal. 344; Norton v. Lane, 30 Cal. 126. The second count was not necessary. A count upon an account stated could not in this case affect anything. If these acceptances were barred by the statute of limitations, the stating of the account between the parties would not take it out of the statute, unless such stating was “ in writing, signed hy the party to be charged thereby.” Chase v. Trafford, 116 Mass. 529; s. c., 17 Am. R. 171; C. L. § 1126, p. 369. The whole question, therefore, reverts back to the acceptances. If these acceptances were barred by the statute of [471] limitations, suit could not be maintained upon them, but they would be sufficient consideration for a new promise. And if there was a new promise or acknowledgment in writing, signed by the appellant, the action should have been upon the new promise or acknowledgment. Boukofsky v. Powers, 1 Utah, 333; McCormick v. Brown, 36 Cal. 180; Farrell v. Palmer, 36 Cal. 188. There certainly is no cause of action, either upon the account or upon the account stated. It is not necessary to notice any other alleged errors. The action of the court below in giving judgment and overruling the motion for a new trial is reversed and remanded. EmersoN, J., concurred. Sohaefeer, O. J., dissented, but filed no written opinion.