Keller v. Jackson

Rothrock, J. 1. EVIDENCE : action on account: admission of correctness. I. The last item of credit is for $15 in cash, and is dated June 21, 1876. The next to the last is an item of $8 for dray age and dated February 1,1876. The appellant contends that there was no sufficient „ ,. ,. , . .. proof oi the account. Objection was made to a certain book of accounts which the plaintiff introduced in evidence. We think that these objections are not well taken. We need not enter into a discussion of these questions, however, because under the oral- evidence the court could not have found otherwise than that the account, including the credits, was fully shown to' be correct. The plaintiff testified that the defendant told him, the day before the trial, that “the account was all square and sho.uld be paid.” And another witness, the attorney of plaintiff, testified as follows: “This matter came into my hands early this Spring. I have seen Mr. Jackson several time since I have had it; he always acknowledged the account to be correct, and that he would pay the same. He came to me yesterday and said he and Keller had arranged, by which he was to pay so much down and give secured notes for so much per month until it was all paid.” This testimony was in no manner contradicted. The defendant was not examined as a witness upon the trial. Surely no stronger proof of the correctness of the account could well have been made than the foregoing. The general statement of the witnesses that defendant admitted the correctness of the account, must be accepted as an admission that it was correct in every particular. 2. STATUTE of limitations: continuous, open account: assignment of. II. It is insisted that the claim was barred by the statute of limitations, because the account was not an open, continuous, current account between plaintiff and defendant. It is said that when Scott & Keller assigned the account to Keller, “the account closed, and became a chose in action.” But the evidence shows that Scott merely went out of the busineés, and it was continued by Keller, and that he took the accounts and settled the debts. There was no statement of account or settlement with the dé [631] fendant. It is true that all the goods were bought while the partnership existed, but all the other side of the account but one item, that is all the payments but one, were made after Scott went out of the partnership. . The account, it appears to us, “is a continuous, open, current account,” within the rules announced in Tucker v. Quimby, 37 Iowa, 17; and the cause of action accrued on the date of the last item therein as provided in Sec. 2531 of the Code. The account consisted on its debtor side of five items. The first was dated July 16, 1873, and the last August 30, in the same year. The goods consisted of bedsteads, lounges, bureaus, tables, chairs, etc., and the whole account amounted to $220.50. A payment of $25 was made Nov. 6,1873, another of same amount was made March 13, 1874, another of same amount Dec. 27, 1875, one of $8 Feb. 1, 1876, and the last payment of $15 was made June 21, 1876. It is true that there is something over a year and nine months between the item of March 13, 1874, and Dec. 27, 1875, but taking those before and after and the whole together, and considering that all of the items have relation to the same open and continuous transaction between the parties, we are inclined to think there was no such break in the account, or cessation of dealing as to cause the statute of limitations to commence to run at any time before the date of the last item. We have held that the statute of limitations commences running from the last item in the account, whether it be on the debit or credit side thereof. Thorn & Stien v. Moore, 21 Iowa, 285. 3. PRACTICE: objection not made be low. III. It is insisted that the interest claimed in the petition and allowed by the court is excessive. The record does- not show that the attention of the court below was in any manner called to the matter of interest. The first intimation of it is found in the assignment of errors. If defendant had any cause for complaint in this respect he should have called the attention of the District Court thereto either by pleading or by motion after judgment. Affirmed.