Ross v. Fickling

Mr: Justice Morris delivered the opinion of the Court: 1. The first assignment of error, based upon the exclusion by the trial court of the testimony of the defendant Samuel Ross in regard to the alleged insolvency of the Handbacks, is clearly untenable. While it is entirely true that contracts may often be rescinded or avoided on the ground of the insolvency or financial embarrassment of one or more of the parties to them, yet the contract in question here is plainly not of such a character as to justify the application to it of any [450] such rule of rescission. This contract required no payment of money by the Handbacks. The money for building was to be advanced by the defendants; and their solvency was important, not the solvency of the Handbacks. These Tatter were required to give a satisfactory bond and execute a deed of trust; and they did or were ready to do both. Nothing more was required of them. It does not appear how their solvency or insolvency was relevant to the matter. Moreover, it does not appear that any .such objection was raised at the time, or at any time before the trial; and it seems too late to raise it -then. 2. The fifth and sixth instructions requested by the defendants to be given to the jury, and upon the refusal of which the fourth assignment of error is based, were substantially to the effect that upon the evidence the plaintiff was not entitled to recover anything with reference to lots Nos. 57 to 63, inclusive. But plainly there was enough in the case to justify the submission of this question to the jury; and the court in its charge properly and fairly submitted it. In fact, this assignment of error, although made in the brief, seems to be abandoned in the argument; for no part of the argument seems to be addressed to it. We regard it, in any event, as untenable. 3. The substantial question in the case is the application of the statute of limitations to the matter of controversy. It is quite clear to us, both upon reason and upon authority, that the account in this case is not such a mutual account or account current between the parties as in its entirety to take it out of the operation of the statute. It is not, of course, an account stated between the parties, because there was no acceptance of it or acquiescence in it by the defendants; and nothing can be called a mutual account which has not items on both sides. It might well be held that down to the 16th of March, 1893, the date of the payment of $300.50 by Duncanson to the plaintiff, the account was a mutual account. Duncanson, by his payments, may be held to have admitted [451] it, and to have agreed to pay the balance then due to the plaintiff, upon the face of the account. But that agreement became barred by limitation before the institution of this suit; and it was not competent for the plaintiff to remove or obviate that bar by entering items subsequent thereto on his own side of the account. It would wholly destroy the operation of the statute in all cases, if a plaintiff were allowed, by the addition of some new and independent item on his own side of an account, to give new life to an account otherwise barred by the statute of limitations. It might be competent for the person to be charged so to do; but certainly it would not be competent for the plaintiff or person who makes the charge. Since the case of Bell v. Morrison, 1 Pet. 351, we must regard it as well settled law that the mere giving of credit by one party to another is not an admission of unsettled account, so as to charge the party to whom the •credit is given with the whole account. See Sprogle v. Allen, 38 Md. 331; Murray v. Coster, 20 Johns. 576; United States v. Wilder, 13 Wall. 254; 2 Wood on Limitations, p. 715. We think, therefore, that the items in the plaintiff’s account which are contained in what we have designated as the first and second parts, were barred by the statute of limitations at the time of the institution of this suit, and that the trial court should have so ruled. * With reference, however, to the subsequent items, those that concern the sale of lot 116 and the transaction with the Handbacks, we think that the ruling of the trial court was •correct. The sale to Jeremiah Pickling and the sale to syndicate No. 2 were plainly not genuine sales, and were not so regarded by any of the parties. The bona fide sales, upon which, if at all, the plaintiff became entitled to his commissions, were those subsequently consummated or effected. Undoubtedly the plaintiff did not become entitled, in view of the course of dealing of the parties, until the defendants had in their possession, or under their control, money, the result of sale, from which commissions were to be paid; or [452] until, as is claimed to have occurred in the Handback case, the defendants, by their action, prevented the consummation of the contract upon which the plaintiff would have become entitled. If the plaintiff had demanded commissions before the happening of the contingencies indicated, the defendants might well have defended themselves on the ground that the contingencies had not occurred upon the happening of which their liability would have become fixed. The trial court, therefore, in reference to these two transactions, ruled correctly that if the jury should find the facts to be as claimed by the plaintiff, the statute of limitations •would not apply to them. And as the jury found for the plaintiff upon the facts, there seems to be no reason to disturb their verdict on account of the rulings of the court upon the law. But for the error heretofore noted, by which the application of the statute of limitations to the previous portion of the plaintiff’s account was denied, the judgment rendered in the cause must be either reversed or modified. As it is easy, however, to separate thatportion of the judgment which is erroneous from that portion which is unobjectionable, it is in the interest of justice that the judgment, instead of being reversed and a new trial ordered, at cost and expense to both parties, should be modified, which may be done if the plaintiff will undertake and agree .to remit therefrom the sum of $161.98, the amount of the items to which we have held the statute of limitations to be applicable. We understand the appellee, both in his brief and in his oral argument, to offer to make this remission in the event of our holding the statute of limitations to be applicable to this amount. Accordingly, upon the appellee’s filing in this court and in the court below within fifteen days a formal remission.of the said sum of $161.98, on the judgment rendered in the cause, such judgment will be affirmed. The costs of the appeal will be divided equally between the parties. And it is so ordered.'