Warren v. Sweeney

By the Court, Lewis, J. “ In an action brought to recover a balance due upon a'mutual, open and current account, where there have been reciprocal de [102] mands between the parties, the cause of action shall be deemed to have accrued from the time of the last item found in the 'account on either side.” Laws of 1861, page 29, Sec. 17. .What particular character of dealing between parties will constitute a mutual, current account»within the meaning of this section of the' Statute of Limitations is the only material question involved in this appeal, and to that alone our considerations will be ponfined. To bring an account within this section of the statute, there must be mutual demands between the parties — demands upon which each might maintain ah action. Where payments on account are made by one party, for which credit is given by the other, it is an account without reciprocity, and only upon one side; at least, it cannot be said to be a mutual account consisting of reciprocal demands. The items on either side must be such as to authorize the bringing of an action upon them. If all items on one side were intended by the parties as a payment or credit upon an existing account, there would be no such demand in favor of the person making the payments as to entitle him to maintain an action, because the simple showing of the fact that the items upon which he brings his action were intended as payment of a claim against himself, would defeat his actiom If an article of personal property be delivered to the creditor with an understanding between him and the debtor that'it shall apply as payment, the transaction would not constitute a mutual account consisting of “ reciprocal demands” between them. But if, instead of delivering such property as payment, it were delivered without an understanding or agreement that it should be taken as payment, it Avould be treated as a sale, upon Avhich an action might be maintained. Such appears to be the doctrine generally established by the authorities. (2 Watts & Sargeant, 137 ; Lowber v. Smith, 7 Barr, (Penn.) 381.) In the latter case, the arrangement between the parties was to effect an exchange of saltpeter for gunpoAvder, or rather, LoAyber was to receive gunpowder in payment for saltpeter, instead of cash. In delivering the.opinion of the Court, Mr. Justice Rogers said : “ The question therefore is, granting it to be as stated, Avas there such a mutual account as that one item within six years takes the [103] whole account out of the statute ? This point came before the Court in Ingram v. Sherwood, 17 Serg. & R. 347, and. it was there held that to constitute a mutual account vdthin the exception of the statute, there must be a reciprocal demand ; that it does not apply where the demand is altogether on one side, though payments on account have been made. In the case cited, the payment was to be made in cash,^5wi whether in cash or in hind can mahe no difference. The principle ruled in the case cited is, that there must be a reciprocal demand; that is, each party must have a right of action.” So in the case of Weatherwax v. Cosumnes Valley Mill Co. et als., 17 Cal. 344, the same doctrine is laid down, and in Norton v. Larco, 30 Cal. 126, the learned Chief Justice, in delivering the opinion of the Court, used this language: “ It must be admitted that a payment, whether it be of money or of any article of personal property of a stipulated value, made an account, would not make an account a mutual account consisting of reciprocal demands.” See also Angelí on Limitations, Sec. 149. When therefore it is sought to establish a mutual account, consisting of reciprocal demands, by showing the delivery of some article of personal property, the material question is, whether it was the intention of the parties to treat it as payment upon account. If it were intended as payment, or if it be shown that such ay as the agreement or understanding between them, it must be treated by the Courts as money paid upon account, and nothing more, Avhich does not, as we have endeavored to show, make a mutual account, “ consisting of reciprocal demands.” The testimony in this case shows no mutual account or reciprocal demands between the plaintiff and defendant. It Avas proven that work had been done by the plaintiff for the defendant, for which a charge of twenty-three hundred and nine dollars was made. It is hoAyever admitted that no work was'done Avithin tAvo years prior to the bringing of this action. But it is sought to bring the claim within the saving of the statute by proof of the delivery by the defendant to the plaintiff of a Avagon within the two years, for which the defendant received a credit of one hundred dollars. Had it been shoAYn that this Avagon was sold to the plaintiff, or had the delivery been such as to authorize an action for its value by the [104] defendant; or rather, had it not been treated by the parties as a payment on account, the plaintiff would have brought himself within the saving of the statute. But by his own testimony it is proven that the wagon was delivered to him as payment of a hundred dollars on account. He testified with respect to it as so much money paid by the plaintiff. He says: “ On this account the defendant has paid and is entitled to be credited with the following sums of money,” — and then mentioned, among other items, “ one wagon, $100.” This is all the testimony in the record before us with respect to the wagon. And upon it there seems to be no alternative but to treat the item as so much money paid on account. So the Court below decided, and there is certainly no evidence in the record to warrant the conclusion .that it erred. » A judgment of nonsuit -was granted by the Court below, but the judgment which was actually entered is in form a judgment on the merits. This should be corrected so as to conform it to the actual state of the case. Therefore the judgment will be modified accordingly in this Court, with cost of this appeal against respondent.