Dunn v. Estate of Fleming

Oassoday, J. It is agreed on both sides that the only question for consideration is whether the claim presented was barred by the statute of limitations. Sec. 3841, R. S. This depends upon whether it is “ to recover the balance due upon a mutual and open account current ” within the meaning of the statute. Sec. 4226. If the claim constituted such an account, then the cause of action “ accrued at the time of the last item proved in such account.” Ibid. As to whether it was such an account, the court charged the jury as follows: “How, an open, that is, unsettled, and mutual account current, is an account consisting of credits as well as debits, charges and credits, between the parties. An account in which A. charges B. with a number of items extending through a considerable time, but in which B. has no credits, is not a mutual account current between the parties.” This instruction seems to be in harmony with the repeated rulings of this court. Hannan v. Engelmann, 49 Wis. 282; Fitzpatrick v. Estate of Phelan, 58 Wis. 254. The court also charged the jury that: “Upon the issue thus presented the burden is upon the plaintiff to convince jrou that there was such open, mutual account, and if there was, then to satisfy you of the balance due him, to entitle him to recover thereon. If you shall be satisfied that such open, mutual account existed, then the plaintiff can recover, if at 548 all, such sum only as the evidence satisfies you was due him at .the time of Mr. Fleming’s death on account of transactions between the parties had within six years immediately preceding that event.” These instructions put the burden of proof upon the plaintiff, and left it to the jury to find whether it was such an account and, if so, the amount due thereon. It seems to us that the question was fairly submitted to the jury, and that the evidence supports the finding that it was such an account. These portions of the charge cover the principal exceptions relied upon. There are other exceptions to other portions of the charge, but' as they are either involved in what has already been said, or are more favorable to the estate than,to the plaintiff, it is unnecessary to specifically consider them. By the Court. — The judgment of the circuit court is affirmed