Tucker v. Quimby

Miller, J. The plaintiff brought his action before the justice, claiming of the defendant $20.05, on a boot account, a copy of which is as follows: 1867. 1. Jan. 8, To wagon tongue...................$2 50 2. Jan. 16, To one pair whiffletrees.............. 3 50 3., Jan. 16, To clasp on tongue and mending tire.. 75 4.' Jan. 18, To mending sled and trace and bolts .,. 1 10 5. Jan. 18, To one reach for sled................ 1 25 6. Eeb. 16, To setting eight shoes, 25c........... 2 00‘ 7. Feb. 18, To setting eight shoes and toecalts, two shoes........................... 2 10- 8. Feb. 28, To setting one shoe................. 25- 9. Apr. 12, To one new shoe................... 25 10. May 3, To two cogs and bolts to seeder....... 85 11. May 8, To plates on reach.................. 40 12. June 28, To mending chain......... 10 13. July 3, To setting one shoe................. 25 14. Aug. 3, To 120 pounds of coal............... 2 00 1869. 15. July 25, To use of buggy one day............. 50 [19] The defendant appeared and answered as to the last item, admitting its correctness and tendered the amount thereof with interest, and all the costs accrued up to the time of tender. At the same time the defendant filed a demurrer to the plaintiff’s claim on the other part of the account, for the reason that the same was barred by the statute of limitations. Plaintiff thereupon moved to strike the demurrer from the files, which was ovesruled by the justice and the demurrer sustained. These rulings were made the grounds for the writ of error from the circuit court, upon the return of which, after a hearing thereon, the court reversed the ruling of the justice and remanded the cause for a re-trial. The first error alleged in the circuit court was the ruling of the justice on his motion to strike defendant’s demurrer from the files. "Was this error? An answer to this question involves the further question whether the account as sued constitutes but a single cause of action, or in other words, whether all the items of the account constitute, in the language of section 2743 of the Revision, “a continuous, open, current account.” An account to be “ continuous,” must be without break or interruption. By the term “open,” we mean something that is not closed, and the term “current,” as used in the statute, signifies “ running,” “ passing,” a “ connected series.” See Webster’s Unabridged Dictionary. Hence, a “continuous, open, current account,” is an account which is not interrupted or broken, not closed by settlement or otherwise, and is a running, connected series of transactions. Now, it is clear that the charges contained in the account in this case commencing January 8, 1867, and running till August 3d of the same year, answers all these requirements. The items are for repairing wagon, sled, seeder, and for horeshoeing, and other blacksmith work, made in thé usual and ordinary business of a blacksmith. This account here ends on the 3d of August, 1867, and there is no charge or entry in the account until the 25th day of July, 1869 (almost two years thereafter), when a charge for use of buggy one day, is made. This charge does not seem to [20] be for any thing usual in a blacksmith account, and occurring so long after the other items, it cannot be said to belong' to and be included within the continuous, open, current account, which seems to have been broken off for nearly two years. The matter charged in July, 1869, seems to be foreign to the usual business of the plaintiff, as indicated by the other charges. This fact and the length of time intervening from the last of the previous charges, leads us to the conclusion that it cannot be fairly held to belong to and be the last item of a continuous, open, current account; but that the charge entered on the 3d of August, 1867, is the last item of such account, which is barred by the statute of limitations. Reversed.