Hall & Chase v. J. & J. H. Peck, & Co.

[477] The opinion of the Court was delivered by Phelps, J. The plaintiffs seek, in this case, to recover for certain property left by them with the defendants, to be sold and disposed of by the latter, as factors or agents. The action is book account, and the first objection to the plaintiffs’ recovery is, that they have mistaken their remedy in suing in this form, when account, at common law, is the appropriate remedy. This action, as adapted to book accounts, is a creature of the statute, which, after prescribing the mode of proceeding in the action of account, provides that the action may be sustained to recover a book debt. The action of account at common law was perhaps of more extensive application than is generally understood. It has, however, with the exception of one or two of the New England states, fallen into general disuse, and in England has become in a measure obsolete ; probably, because super-ceded by other more convenient remedies. Its place is supplied, in some measure,by resort to chancery jurisdiction, and, more extensively, by the action of assumpsit. Account, charging the defendant as receiver, lay at common law, where money was received by him, to the use of the plaintiff. It lay in all cases, where the money, received from a third person, was the money of the plaintiff, and was received by the defendant to be accounted for. It lay, of course, against a factor or mercantile agent, who was both bailiff and receiver. In these cases it has been superceded by the action of assumpsit, which is now the usual remedy in simple transactions of the kind, and lies even against a factor to recover a balance of account, unless his transactions are too complex to admit of the mode of trial by. jury. The action of account is, with us, concurrent, in a great variety of cases, with assumpsit. In this case it is admitted, that account at common law would be appropriate ; and it must also be conceded, that assumpsit for money had and received would lie against these defendants, for the avails of the property in question, when realized. It is insisted, however, that the action on book will not lie. The question then arises, whether account at common law, and account on book, are in any case [478] concurrent remedies. That they are not so in all cases, is very apparent. But there is nothing in the nature of the two f°rms °f action to forbid their being concurrent, where they are equally applicable to the subject matter of the claim. There are many cases, in which I apprehend the action on book account at common law, and assumpsit, would lie. A merchant takes the produce of his customer to" market, and receives the avails. He credits these avails to his customer in account. Is there any question, that the balance might be recovered in the action on book ? So the merchant in the country transmits produce to his correspondent in market for sale. The property is sold, the avails received, and entered in account. Was it ever doubted that such a transaction could be adjusted in an action on book ? Yet, in both these cases, account at common law, or assumpsit, will lie. The general usage and practice of the country is important, in determining what is a proper subject of charge on book. We understand it to be the general, if not the universal practice, to enter transactions of this kind upon book, and to adjust them in this way. It is said, however, that to render a charge on book proper, the right to charge must exist, at the time the property is delivered. This is true ; but the right to charge may exist, although the party is not absolutely a debtor in relation to the subject. An item may be charged on book, by reason of the accountability of the party in respect to it. Whenever property is delivered, to be accounted for, upon a future adjustment of book accounts, it may properly be charged, although no right of action may exist at the time, but it may be charged, upon the ground of the accountability alone. We think, therefore, that the action on book is in this instance sustainable. It is further objected, that the plaintiffs’ action is premature, inasmuch as no demand was made upon the defendants, for the avails of the property, before suit brought. We think a sufficient demand was made before the writ was served. It is certainly true, that a factor or agent, transacting business of this character, for a principal abroad, is not liable to a suit for moneys of his principal in his hands, without a previous demand of payment; and the reason is, that he is not [479] bound to follow his principal, to make such payment, but the place of payment would be the residence of the factor. But nothing more is necessary, than that a request to pay the money be made at the factor’s residence, and a sufficient opportunity afforded him to make the payment. . The only question arising on this point is, whether such demand is necessary before suing out the writ. We think not, for although the suing out the writ is, to some purposes, the commencement of the action, — as with reference to the statute of limitations, — yet the defendant is not subjected to costs until the writ is served; and if an opportunity is afforded him to pay the debt before the writ is served, and without costs, it is all that can be reasonably .asked. An attempt is made to derive some advantage from the circumstance, that the defendants, by mistake, credited the proceeds of the property in the wrong account, and to the wrong person. If this mistake were attributable to the plaintiffs, something might possibly be made out of it, but as it is, we see no reason why a mere mistake of the defendants, in this particular, should prejudice the plaintiffs. Judgment reversed, and judgment for plaintiffs on the report. Collamer, J., dissenting.