Ambler v. Bradley

[120] The opinion of the court was pronounced by Phelps, J. — Upon the first point raised in this case, it is unnecessary to inquire what would be. the effect of the objection, were the item in question the only charge against the defendant. In this case the parties had a running account exclusive of the disputed item, and other claims existed at the commencement of the suit, proper to be litigated. Supposing then that the term of credit had not expired when the suit was brought, but had expired at the time of the audit, should it be taken into the account? The statute (Rev. Laws, p. 143) is peremptory, and requires the auditor to adjust the account, up to the time of the audit. This item being then due, the auditor should have included it, notwithstanding that the credit had not expired at the commencement of the suit. This provision of the statute is in conformity with the common law. In actions of account, the account is always adjusted up to the time of taking it. This results from the object of the suit, which is to ascertain and recover the balance due. There would certainly be no propriety in making a false balance, to be rectified by an after suit, of in giving judgment against a party notin arrear. Besides, the adjustment of the account is in the nature of the assessment of damages, where interest, payments, &c. are adjusted to the time of judgment. As to the other point, the objection is ill-founded in fact. The plaintiff and Wells were never partners in the business of the mill. — They never shared in profit and loss. The share which Wells received was a mere compensation for his labor. This point has been often determined. But admitting that plaintiff and Wells were joint creditors of the defendant, it was still competent for the parties to sever the claim. It seems they did so by mutual consent; and the payment to Wells of his share completed the severance. After this, Wells had no interest in the residue; but it. was due to the plaintiff alone. The authorities cited by the counsel abundantly support this position. The judgment of the county court is reversed, and judgment rendered for the plaintiff.