Huxley v. Carman

The opinion of the court was delivered'by Ross, J. The statute allowing “ an item or items of account ” to be adjudicated in an action of book account, we do not think was intended by the legislature to merge the action of account in that of book account. To give it that effect, would be to place a forced and uncommon construction upon the language of the statute. If the legislature had intended to have given such scope and effect to the statute, it would have used language bettor adapted to that end. It could as easily have worded the statute so as to read — all matter proper to be settled in an action of account, may hereafter be settled in the action of book account. By limiting the effect of the statute to “an item or items of account,” it intended that if in settling a proper book account between two parties, it should be found that one or two, and perhaps more, of the items at issue between the parties, were proper to be adjudicated in an action of account, these items should not be omitted from the accounting, and made the subject of a separate action, but might be settled in the action then pending between the parties. It is entirely foreign from the language and spirit of the statute, to allow a party whose main subject of controversy is properly a matter of account, but who has a few items of book account disconnected with, or arising incidentally out of, the principal subject-matter, to bring in, and settle in book account, the principal subject in controversy, which is proper to be settled in an action of account. This is substantially the construction which has been placed upon this statute by the former decisions of this court. In this case, the principal subject of controversy arises out of the lease under which the defendant [465] carried on the plaintiff’s farm for a year, upon shares. All the items in controversy which arise under, and are to be determined by, the stipulations in the lease, are matters appropriate to be settled in an action of account. The items of book account involved in the controversy, are few and unimportant, as compared with the items of account, and would never have existed if it had not been for the lease, which is the origin of the entire controversy. We do not think it would be consonant with the meaning and scope of the language of the statute, nor with the decisions of 'this court, to hold that all the matters of controversy which grow out of the carrying on of the plaintiff’s farm under the lease, may be settled in an action of book account, because the plaintiff, while carrying on the farm, was' enabled to charge, properly, a few items on book against the defendant. We think that all the items presented by either party which are to be determined by the provisions of the lease, must be excluded from the accounting in this action. Of the 48 items in the plaintiff’s account, only items numbered 1, 2. 3, 8 and 48, amounting as allowed by the auditor, to the sum of $92,25, can be settled in this action. Of the 30 items in the defendant’s account, only item 34, allowed at $9, is proper to be settled in the action of book account. The wool money, item 48 of the plaintiff’s account, was taken from the operation of the lease by the agreement of the parties. The items in the defendant’s account for repairing the house, are controlled by the lease, and not proper to' be charged in book account. The judgment of the county court is reversed, and judgment rendered for the plaintiff to recover $81,25, with interest from April 1, 1871; and at the request of the defendant, the case is remanded to the county court, to allow him to make application to have the costs in the county court apportioned.