Sprogle v. Allen

Bartol, C. J., delivered the opinion of the Court. The material question in this case arises upon the rejection by the Court below, of the appellant’s prayer, which asked the Court to disallow all the items of account filed by the appellee under his plea of set off, except such as were within three years before the filing of the plea. It appears from the evidence, that there were mutual accounts current between the parties; that of the plaintiff began in January, 1866, and continued through 1867 and 1868, there being two items in October, 1869; that of the defendant began in December, 1867, and continued through 1868; and in 1869 there are two items, one in May, and one in November, the last .being within three years before the filing of the plea of set off. To that plea the plaintiff replied the ¡Statute of Limitations, which he had a right to do, set off being in the nature of a cross-action. Remington vs. Stevens, 2 [335] Strange, 1271; Alsop vs. Nichols, 9 Con., 357; Webster vs. Byrnes, 32 Md., 86, and cases cited in Evans’ Practice, 189. The question is whether under the facts of this case, the plaintiff is entitled to rely on the Statute as a good answer to the plea; and this depends upon the effect of there being mutual accounts current between the parties. It is not pretended that the case comes within the exception in the Act of Limitations in favor of “accounts concerning the trade or merchandise, between merchant and merchant, etc.” (Code, Art. 57, sec. 1.) But it is contended that there being open and mutual accounts between the parties, and one item of the appellee’s account being within three years, the whole account is withdrawn from the operation of the Statute. The leading cases to which we have been referred, in support of this position are Cranch vs. Kirkman, Peake’s Cases, 164, and Catling vs. Skoulding, 6 Term R., 189. The former was a case at nisi prius decided by Lord Kenyon, and was put on the ground, that the case came within the equity of the exception in the Statute ; for though the accounts were not between merchant and merchant, yet, being mutual and reciprocal demands, and some of the items on both sides being within the period of limitation, it was held to be within the exception. Aíterwardsthe case of Catling vs. Skoulding, came before the King’s Bench (in 1795,) and was decided on different grounds. Lord Kenyon, O. J., said, “I take it to have been clearly settled, as long as I have any memory of the practico of the Courts, that every new item and credit in an account given by one party to the other, is an admission of there being some unsettled account betwreen them, the amount of which is to be afterwards ascertained; and any act which the jury may consider as an acknowledgment of its being an'open account is sufficient to take the case out of the Statute.” [336] The decision in Catling vs. Skoulding, has been followed in this country in a great number of cases, which will be found collected in Angell on Limitations, 132, note 3. Judge Parsons, in his work on Contracts, vol. 3, pp. 71, 72, 73, (note d;) in speaking of Catling vs. Skoulding, says, “Perhaps this decision is consistent with the views then prevailing in respect to new promises and acknowledgments : but it is submitted that it cannot be sustained on principle, since the decision of Tanner vs. Smart, in England, (6 B. & C., 609,) and Bell vs. Morrison in this country, (1 Peters, 360);” and while the learned author states in the same note, that the main current of American decisions is still in accordance with Catling vs. Skoulding, he says, (in his text) “we think these decisions are inconsistent with the views which now prevail in regard to. new promises and acknowledgments, and we doubt whether they will be followed in any jurisdiction where the question is still open. It has been distinctly repudiated in Blair vs. Brew, 6 N. H., 235 ; Livermore vs. Band, 6 Foster, 85, and in Kentucky in Lansdale vs. Brashear, 3 T. B. Mon., 330 ; Smith vs. Dawson, 10 B. Mon., 112, and in Tennessee in Craighead vs. The Bank, &c., 7 Yerg., 399. In Maryland the question is a new one. and looking at the reasons upon which the decision of Catling vs. Skoulding was based, we should hesitate to adopt it as the law of this State. According to the uniform course of decisions here it has been held that, in order to remove the .bar of the Statute, there, must be a new promise, or a distinct acknowledgment of a present subsisting debt or liability, from which a new promise will be inferred. Oliver vs. Gray, 1 H. & G., 204; Beltzhoover vs. Yewell, 11 G. & J., 212. We refer also to Buffington vs. Davis, 33 Md., 511, and cases cited in the opinion of the Court, page 514. [337] These decisions are altogether inconsistent with the ruling in Catling vs. Skoulding, and the reasoning on which it was based. In Beltzhoover vs. Yewell, 11 G. & J., 216, it was held, that “an acknowledgment, to take a debt out of the Statute of Limitations, if not made in express terms, must be evinced by facts, satisfactorily showing the admission of the debtor that the debt had not been paid.” In that case an attempt was made to remove the bar of the Statute by showing that payments had been made on the account, which was the cause of action ; but the Court held that “to revive the items of an open account which are barred by the Statute, by a payment in part or payment on account, it is necessary it should appear that the payment toas made on those items, and that the debtor witji full hnoioledge of the charges barred by the Statute, made the payment recognizing their validity. ’ ’ After referring to the course of decisions in Maryland, it seems to be unnecessary to enter into extended argument to show that they are inconsistent with the doctrines in Catling vs. Skoulding. These have been reviewed with great ability by Chief Justice Parker in Blair vs. Drew, 6 N. H., 235, a.nd by Kennedy, J., in his dissenting opinion in Van Swearingen vs. Harris and Thomson vs. Hopper, 1 W. & S., 468; to which we refer for a clear and forcible expression of the reasons upon which we dissent from the decision in Gatling vs. SJeoulding. We have said the question is a new-one in Maryland, presented for decision lor the first time in the Court of Appeals. Some reference was made to the effect of mutual accounts between parties in Webster vs. Byrnes, 32 Md., 86. It was held that the case was one to which the rule, there contended for on the part of the appellant (Webster,) could have no possible application; it being an [338] account on one side only. But the Court did not decide the question here presented; this’ did not arise in that case. (Decided 2nd July, 1873.) The Court refer to the rules supposed to be applicable to a case of mutual accounts, as contended for by counsel ; but without recognizing it as correct, simply decide that it could have no application to the case. In this respect the note of the reporter is not quite accurate and does not correctly express the judgment of the Court. After a careful consideraton of the question, we are all of opinion that the judgment below ought to he reversed, ■ and a new trial ordered. Judgment reversed and new trial ordered.