Meyer v. Ludeling

The opinion of the Court was delivered by Watkins, J. The plaintiff sues upon open mercantile accounts for goods, wares and merchandise furnished by him during the years 1881 and 1885. Deducting a credit of $7,044.45 he claims a balance of $3,845.02. In limine the defendant tendered a plea of three years’ prescription' against each and every item of the. several accounts, and it was separately tried and overruled. The defendant’s answer sets up the general issue and a full settlement of accounts up to and including 1883. He avers that in the spring of 1884 “he entered into an agieement “ with the plaintiff to purchase certain supplies for plantation use “ from them, under the following terms and conditions, to-wil : Ten “ per cent to be added to the cost for meat and tobacco, to be paid for “ at the end of the year; for dry goods and supplies, except meat and “ tobacco, he was to pay cash, the price to be ten'per cent added to “ cost.” He avers that, in pursuance of said arrangement, he had, up to the — 641 — middle of Jane, 1884, “ settled for all amounts represented by plain- “ tiffs to be due. for cash purchases,” in cash and drafts. That on or about the 24th of June, 1884, he purchased a bill of merchandise and delivered to him a lot of wool “ to be sold by plaintiff for “ defendant, and the proceeds of sale applied ” thereto; and that no account has been rendered to him thereof, and plaintiff owes him therefor. He then avers “ that notwithstanding the said judicial settlements, “ plaintiff’s accounts erroneously contain charges for articles alleged to “ have been purchased within the periods for which defendant had “ settled;” and, though requested so to do, plaintiff failed to give him bills of the merchandise from time to time. Complaint.is made of “ the charges for freight bills,” as being erroneous and unauthorized, and he avers that “in all instances (he) reim- “ bursed plaintiff, and as soon as he was informed of such payments.” He specially avers that the charge of $15.00 for peas was reimbursed. The defendant then represents that lie delivered to plaintiff in 1884 and 1885, 277 bales of cotton, of which 265 were sold him and twelve were consigned for shipment and sale for his account; that in January or February, 1885, he delivered him six additional bales, for which plaintiff has rendered him no account, “nor have the proceeds been credited” to him on account; that, in like manner, other cottons were delivered to him for sale on account and of which he has received no return. He “ avers that plaintiff held the proceeds of the sale of all of said “ cotton hereinabove described, as a special deposit for (him) and that “ they owe him for the proceeds $12,430.98,” for which he prays judgment in reconvention against the plaintiff, with legal interest; and he also prays that plaintiff’s demands be rejected. After a protracted trial, and a full investigation of the accounts of the parties pro and eon, and the vast amount of parol and documentary evidence, the judge a quo rendered judgment in favor of plaintiff for the amount claimed, subject to a credit of $559.32, and from this judgment the defendant has appealed. In this court the plaintiff and appellee has answered the appeal and demanded that the judgment be increased in his favor. I. The first question for us to determine is that of prescription. The date at which prescription liberandi causa begins to run on open mercantile accounts is at their maturity, that is, at the end of the year in — 642 — which they are contracted. On this question there is no dispute. This suit was filed and service of citation made on the defendant, in person, on the 3rd of January, 1888. Hence all items of-indebtedness which were contracted on any date, either in 1883 or 1884, became prescribed on the 31st day of December, 1887 — three days antecedent to the service of citation on the defendant — unless same was interrupted in some of the modes provided by law'. Those contracted in 1885 were saved from prescription by this suit. The first point made by plaintiff’s counsel is that, at different times, and reasonably, the various accounts were rendered to the defendant, and that same were not specifically denied or disavowed by him, and that, on that account, and in][ that manner, same acquired the charac ter and status of “ staced accounts ” which are only prescribed in ten years. His petition makes mention of these as the “ several accounts * * for the years 1884, 1885 and 1886.” Special mention is made of the $262 balance of account of 1883, as having been rendered, but of no other account. This was a much mooted question, oh the trial of the plea, and we think a fair preponderance of the evidence shows that such- of the accounts as were rendered were disputed, and payment was refused, in part at least. But we are of the opinion that the arbitration proceedings and the suit to enforce the payment of the award of the arbitrators constitutes a legal interruption of prescription, and that the current of prescription remained suspended during their pendency. A submission of the identical matters litigated in this suit was made to arbitrators, and they were sworn on the 18th of November, 1886. They made and signed an award on the 8th day of April, 1887. On the 20th of August, 1887, the present plaintiff sued in affirmance of the award, and prayed a judgment rendering it executory. On an exception tendered by the present defendant the judge who tried and decided this cause, tried and maintained the exception on the sole ground that the arbitrators failed to make their award within three months, and that the umpire did not appear to have been sworn. The code provides that a legal interruption of prescription takes place when the debtor “ has been cited to appear before a court of “justice * * whether the suit has been brought bbfore a “ court of competent jurisdiction or not.” R. C. C. 3518. In the case of Satterly vs. Morgan, 33 Ann. 846, this court entered into an extensive examination of adjudicated cases under this article of the code, and, upon most careful consideration, held that there is a — 643 — clear “distinction between tbe technical sufficiency of a citation as a “ basis for the maintenance of proceedings and judgment, and its suf- “ ficiency for the purpose of interrupting prescription.” The same can be as correctly said of the character of the suit. An arbitration is a covenant by which persons who have a law suit or difference with another, select arbitrators to decide the matter. R. C. C. 3099. They may submit “ a law suit already instituted, or only in contení-: plation.” R. C. O. 3102. “The arbitrators ought to determine as judges, agreeably to the “ strictness of law.” R. C. C. 3110. ■ We think it is clear that the proceedings of arbitrators are quasi judicial. During the pendency of their proceedings plaintiff’s right of action for the enforcement of his demands, in the courts, was suspended; and hence prescription was suspended, if not interrupted, thereby. The defendant’s counsel claims that the plaintiff dismissed his former suit voluntarily and that he thereby lost the benefit of the interruption, if any was produced thereby. Not so; the judge tried the defendant’s exception and sustained it and rendered an interlocutory judgment dismissing the suit as of non-suit, and with a full reservation of plaintiff’s right “to sue upon the matters embraced in the submission.” We are of the opinion that the judge a qua correctly overruled defendant’s plea of prescription. II. On the merits, the principal contention of defendant’s counsel is that the plaintiff has not introduced a sufficient amount of positive proof to entitle him to judgment. That while it is true that the plaintiff, as a witness, states emphatically that the accounts are correct, yet he, upon cross-examination, admitted that he did not know that of his own personal knowledge, but that he knew that the accounts were drawn from his books, and that they were correctly kept. His' contention is that a, merchant’s books are not evidence in his favor and hence parol evidence cannot be. This is a non sequitur. The testimony of the proprietor that he knows that his books are correctly kept is not proof of their contents, but that their contents are correct. This is certainly competent, if not sufficient evidence, when taken m connection with the books. Now, the accounts are the mere exemplifications of the books, and his statement is that the accounts — 644 — have been correctly kept, to his knowledge. In addition to this, all of these accounts were rendered to the defendant years ago, and while it is true that he did not remain silent, and thus acquiesce in their correctness, yet he did make only a few objections to some of the items. Those items not objected to were certainly admitted. The quotations we have made from his answer clearly admit that there were dealings between himself and plaintiff in those years. In the spring of 1884, he represents and judicially admits that there was an agreement between himself and the plaintiff, wliereunder the latter undertook to furnish him plantation supplies upon certain specified terms. He again states that he settled for all amounts represented by the plaintiff to have been purchased for cost, up to the 24th of June, 1884; that he delivered him a lot of wool for sale, and that the plaintiff had agreed to sell the wool and place the proceeds to his account ; that “ notwithstanding he had made periodical settlements, plaintiff’s “ accounts erroneously contain charges for articles alleged to have “ been purchased within the periods for which he settled;” that the charges made in the accounts for freights paid are erroneous and unauthorized. In addition to all of these guarded admissions in the defendant’s answer, clearly admitting the truth and genuineness of the accounts, with limited exceptions, there is other evidence in the record which it is unnecessary for us to detail, which seems to fortify and strengthen the conclusion that the district judge has done ample and exact justice in the premises. Amongst others, one incident may be cited, and that is, the award of the arbitrators which places about the same estimate upon the defendant’s indebtedness as the judgment appealed from does. While it was not offered in evidence for the specific purpose, yet it is in the record, and we may give it consideration as a circumstance that may be placed in the scales before striking the balances. But without any of these circumstances being considered, the plaintiff’s own statement made on cross-examination, in the absence of other testimony, would be ample. It is ns follows, viz: “ Q. Did you sell the articles enumerated in your accounts 1 “ A. I think I did. Not all of them myself. “ Q. Do you know the particular ones you sold ? “ A. Not the specific articles. “ Q. Do you know of your own knowledge that they were sold 1 “ A. I saw the majority of them sold.” These statements are corroborated by the evidence of Herman — 645 — Meyer and Solomon Meyer. The latter states emphatically that he delivered these accounts to the defendant and that he made no objection to them at that time or subsequently. Altogether, we are of opinion that the accounts are substantially proven, and that the credit allowed defendant in addition to the credit of $7044.45 allowed oy the plaintiff on the' face of the account and before suit, is all that he is entitled to. Judgment affirmed.