Hicks' Estate v. Blanchard

The opinion of the court was delivered by Royce, Ch. J. This was an action of assumpsit in which the plaintiff claimed to recover the amount appearing to be due upon the promissory note and account described in his specification. The defence relied upon was the Statute of Limitations. The evidence of the witnesses, Brigham and Stetson, was rightfully excluded. Brigham was the attorney of record of [678] tbe plaintiff and brought this suit. While lie was acting as such attorney he came into possession of the note in controversy and the plaintiff’s specification of his claim, and the defendant offered to prove that he obtained a copy of said specification from said Brigham, and to use the same as evidence. The relations that subsisted between the plaintiff and Brigham were such that Brigham was not at liberty to allow papers which had come into his hands as the plaintiff’s attorney to be used as evidence in a suit in which the validity of the claims described in said papers was in controversy. They were what the law designates as privileged communications. And the rule in relation to them is stated in Greenleaf on Evidence, sec. 237, Stephen’s Digest of the Law on Evidence, art. 115, and 1 Phillips’ on Evidence, 116, to be that the attorney of a client cannot be compelled to disclose papers delivered to him or communications made to him by his client; neither will he be permitted to do so without the consent of his client. The note described was dated the 21st of September, 1867, and made payable on demand, and the last payment made and indorsed thereon was made on the 5th of November, 1874. The writ was dated November 5, 1880, and was served on the 23d of February, 1881; and it is claimed the action was not commenced within six years after the payment made upon the note; that the day upon which the payment was made is to be reckoned in determining when the six years would run within which the action should have been commenced; and that by reckoning that day more than six years had elapsed from the date of the payment to the commencement of the action. How that question might be decided, if it was to be governed by the authorities which the industry of counsel has brought to our attention, we do not feel called upon to decide. For, in our judgment, the statute defining when the action must be commenced, must be construed by the direction given in chap. 1 of the Construction of Statutes, sec. 26, which provides that when time is to be reckoned from a day or date, or [679] act done, sucb day, date, or day when such action is done should not be included in the computation. So that, construing the statute as thereby directed, the date of the payment is to be excluded in computing the time when the action might be commenced, and by excluding it the action was seasonably brought. That view disposes of the attempted defence to the right of recovery upon the note. The remaining question relates to the plaintiff’s right to recover for the account described in his specification. There can be no recovery for items 9,10, 11 and 12 ; for the referee has found that the services rendered and provisions furnished which constitute these items were not rendered or furnished under circumstances that raised a promise, express or implied, that they were to be paid for, and that neither party expected they were to be paid for, and that they were never charged in any book. So the right to charge them never existed. Both parties understood that the first seven items of the account were to be paid, and they, with number 8, were regularly entered on the plaintiff’s book. The services charged for in item number 13 were rendered under an agreement that the plaintiff was to receive therefor a certain sum quarterly, and the sum agreed to be paid at the end of each quarter was paid as agreed and no charge was ever made by the plaintiff for the same. The services rendered under that contract and the payments received therefor were not intended to enter into the general account between the parties and were not so treated by the parties, as is evident from the fact that no chaige was ever made for the same. “ Payment of specific items of charge, unaccompanied by any circumstances showing a recognition of any other account, will not be sufficient to remove the operation of the statute.” Hodge v. Manley, 25 Vt. 210; Harris v. Howard’s Estate, 56 Vt. 695. What has been said to that item applies also to item number 14. In October, November and December, 1878, the plaintiff [680] furnished feed for the defendant’s horses and paid for shoeing them, and kept an account of the same in his diary, but not on the book on which his other account with the defendant was kept. The defendant paid him from time to time different sums, and intended to keep him reimbursed for such expenditures, and the plaintiff gave him credit on said diary for what he so paid him. It is not found that any contract was made as to how or when the plaintiff was to be compensated for such expenditures. In November, 1878, the defendant delivered to the plaintiff 140 lbs. of pork at $8.40, which overpaid the charges of the plaintiff for this expenditure for the defendant $7.45. No direction was given by the defendant as to where it should be applied, and no application of it has been made except by the credit given for it in the plaintiff’s diary. It is claimed by the plaintiff, that the delivery of the pork and its receipt by him under the circumstances detailed removed the effect and operation of the statute from all previous charges, and that the statute commenced running thereon from the date of its credit; that any new item of credit which the defendant pays with a view to lessen that balance is equivalent to a new promise to pay what remains and removes the statute bar, as was held in Hodge v. Manley, supra, and Abbott v. Keith, 11 Vt. 525. The referee has found from the fact that the plaintiff had a large book, kept with apparent care, and did not enter thereon the item for the pork, that neither party understood that it was to apply as part payment of the first items of the account, or had any connection with them. It has been frequently held that the manner in which an account is kept is unimportant. Abbott v. Keith, supra. It is a proper subject as evidence to be considered by the trier as bearing upon the good faith and honesty of the account. But the true inquiry is, whether the item represents a legal indebtedness that should go into the account of the parties, and not whether either party has or has not embraced it in his account. Davis v. Smith, 48 Vt. 52. It is found that the poi'k was not intended as a gift, and if not [681] so intended, the plaintiff became legally liable to account for it, and being so liable, it became a proper subject to be entered .in his account with the defendant, and to be adjusted in their final settlement. If there had been a direction given as to its application, or facts had been found from which the court could infer that a diffei’ent application was intended by the defendant, the question might merit a different consideration. The case stands for judgment as it would if the defendant had paid to the plaintiff a sum of money with no evidence as to the application to be made of it, except the manner in which the plaintiff kept his account of it. In such a case the law is too well settled to require the citation of authorities that the creditor has the right to make the application upon any indebtedness of the debtor. Here there was no other indebtedness shown except upon the account, and the creditor had the right to treat the delivery of the pork as a payment upon that account; and so treating it, it removed the effect and operation of the statute from all previous charges, so that the statute commenced running from the date of that payment. Every new item of credit or part payment is an acknowledgment of an open unliquidated account, and equivalent to a.new promise to settle and pay the balance thereon due. Hodge v. Manley, supra. Such being the legal effect of the payment made by the defendant, the statute is not a bar to a recovery for the balance of the account. Judgment affirmed.