Lee v. Byrnes

Alvey, J., delivered the opinion of the Court. The counsel for the appellant did not, as we understood him, insist on the first exception. That the appellant had no right to amend so as to plead in abatement, at the stage of the cause when the motion for leave was made, is too clear for question; the cases of Chapman vs. Davis, 4 Gill, 166, and Eschbach vs. Bayley, 28 Md., 492, being conclusive against it. That exception, therefore, might well be abandoned. The second exception taken to the refusal to grant prayers on the part of the appellant, presents a question equally free from difficulty as the first. The action was brought on the 17th of October, 1866, to recover of the appellant the balance of an account alleged to be due the appellee. The account was contracted in May, 1860, and was for $187.50. Subsequently two credits were given on the account, the one on the 4th of September, 1863, and the other on £he 24th of September, 1864, which, on the day of the last credit, reduced the account to $113.74, being the balance sued for. The verdict was for $134,91, being the amount of such balance, with interest thereon to the time of verdict. The appellant pleaded, as set-off, an account which accrued in 1859, and was for, and in respect of, distinct dealings between the parties from those in respect of which the appellee’s accouut accrued. The Statute of Limitations was not relied on as a defence to the claim of the appellee, but it was pleaded and relied on as an answer to the account in bar of the appellant. And it is now contended that these accounts, though accruing at different times, and in respect to distinct dealings and transactions, constitute mutual accounts, and [90] because the statute was not pleaded, or was not pleadable, so as to bar the claim of the appellee, it should not apply to the claim of the appellant; and it is in reference to such theory that the first, third and fourth prayers of the appellant are attempted to be supported. That a demand barred by the statute cannot be made available as set-off, if properly resisted, on the ground of such bar, is clear. But, while this is admitted, it is contended that the accounts produced in this case by the respective parties were mutual, and that, as the credit items in the account of the appellee were entered of a date within the period of limitation, both accounts were thereby withdrawn from the operation of the statute. But it is very clear that these accounts were not mutual, in the sense of the authorities which maintain that the operation of the statute is prevented by the running of mutual accounts, if some of the items be within the period of limitation. To make such accounts mutual, they should appear to be open and current, and show a reciprocity of dealing. Mere payments on account, made by one party, for which credit is given by the other, will not constitute mutual accounts. Ingraham vs. Sherard, 17 Sergt. & Rawle, 347. And that was the character of the dealing in this case. The two credits, the one of $70, and the other of $50, sought to be availed of by the appellant to relieve his account from the bar of the statute, were mere payments on the appellee’s account; and they could not be added as items of charge in the appellant’s previous account, in order to take it out of the operation of the statute. The Court below was, therefore, clearly right in rejecting the appellant’s first, third and fourth prayers. As to the second prayer, also rejected, the object of which was to secure to the appellant the benefit of the two credits in the appellee’s account, already referred to, it is manifest, by comparing the amount of the verdict rendered with the amount claimed by the appellee, with the interest added, that the appellant was allowed the benefit of such credits. It is cer [91] tainly not to be presumed that the appellee was allowed by the jury more than he claimed. The appellant was not, therefore, prejudiced by the Court’s refusal to grant his second prayer. The judgment must be affirmed. (Decided 3d February, 1870.) Judgment affirmed.