Wetherell v. Evarts

The opinion of the court was delivered by Bennett, J. It appears from the auditor’s report, that, at the time when the action wás commenced, the term of credit, upon which the goods were sold, had not expired; and the simple question presented for our consideration is, whether, inasmuch as the plaintiff’s account became due previous to the time of the audit, this action can be sustained. If the plaintiffs had brought assumpsit, instead of the book-action, no one could have doubted, but what the defendant might have insisted, either in abatement of the action, or under the general issue, that the action had been prematurely brought. It is claimed, however, that, in an action on book, a different rule has prevailed, and should prevail; and that it is not essential, that a right of action should have accrued at the time of the commencement of the suit, provided it has become matured at the time of the audit. Though it is a principle of the common law, that, in the action of account, all the items of the accounts of the parties, due at the time of the audit, are to be adjusted, and the same rule prevails in chancery, where a bill is brought for the settlement of accounts, yet I am not aware that it has ever been claimed, that an action of account, at' the common law, could be maintained, provided no right of action had accrued, when the suit was commenced. To hold to such a doctrine would contravene first principles. There must exist a right to call upon the defendant to account, when the suit is commenced, though the particular state of the ac [222] counts may be immaterial. If one is the bailiff of the goods of another, to sell and account for at the expiration of six months, it would indeed be strange, if he could be sued at the end of sixty days. If he was to render his account" upon demand, no action can be sustained, until there has been a special demand ; and this must be alleged in the declaration. The object of our book action, given by the statute, is, in the main, widely different from the action of account at common law; and it has, to a great extent, become a concurrent remedy with the action of assumpsit, for the collection of debts. If the book action can be'commenced, before a right of aetion has accrued, it must result from the provisions of our statute, and not from any principles drawn from the common law action of account. The statute, it is true, directs the auditor to hear, examine and adjust all the accounts of the parties up to the time of making up the report; but there is no intimation, that a suit can be commenced, before any part of the account has become due. The statute, I coneeive, only introduces into the book action, in this respect, the same principle which prevailed in the common law action of account; and probably the same principle would at once have been adopted, without the aid of the statute. It is said, in argument, that the statute, in the case of Martin v. Fairbanks, 7 Vt. 97, has received a judicial construction, such as the plaintiffs now contend for. It appears from the report of that case that the auditor’s report was excepted to, upon the ground that he had allowed certain charges in the plaintiff’s account, which had not bepome payable at the commencement of the suit. As that was an appealed action, and there was no statute applicable to such a case, providing to what time the account should be adjusted, the question was raised, whether the court would, in analogy to the principles of the common law, relative to the action of account, in this respect, introduce the same principle. This is the only point discussed by the learned judge, who gives the opinion of the court. The argument of the counsel is not given; but the exceptions and the opinion of the court impliedly admit, that there was a right to fiue'for some portion of the items of the plaintiff’s account, at the time when the action was commenced; and I have no doubt the [223] trial proceeded upon that ground. I think, however, upon a careful inspection of the facts reported in that cause, there was no right of action, at the time the plaintiff’s suit was commenced; and that the-very question, now under consideration, might, with propriety, have been raised in that case. But, be that as it may, as the point was neither mooted by counsel, or court, we cannot regard that case as a controlling authority for this. The statute has received a practical construction, ever since the government has been organized; and the doctrine now contended for by the plaintiff is of recent origin. This case and one commenced about the same time in the County of Chittenden are the only instances, in which I have known it to have been claimed, that a person could sue in an action on book before any thing had become due to him. The consequences of such a doctrine will be readily apprehended. The whole of a man’s property may be placed under an attachment, before there has been any default in him; and the creditor, who has nothing then due and payable, may thereby gain a preference over other creditors, whose debts are due. We cannot accede to the doctrine, which must be established, to enable the plaintiffs to succeed in this suit. The judgment of the county court is affirmed.