4 A.2d 424 | Conn. | 1939
The amended substituted complaint in this action for groceries sold and delivered to the defendant, which went to the support of her family and for the general benefit of herself and her husband, alleges a net balance due of $1093.48, after crediting total payments of $541.85 up to January 25, 1932. The account is comprised of $200 due prior to a negotiable promissory note therefor dated March 14, 1927, $1357.73 due on twenty-three stated monthly items from March, 1928, to February, 1930, and $77.60 due on items evidenced by eleven checks described by date and amount received from October 17, 1931, to December 5, 1931. It is further alleged that the defendant until 1934 promised to pay, but failed to do so. The defendant's answer is a denial, and a special defense that the action is barred "inasmuch as the right of action . . . did not accrue within six years from the date the same is alleged to have accrued." This special defense is denied by the plaintiff's reply. The action was brought June 8, 1937.
Error is assigned in the court's failure to charge that the Statute of Limitations is an affirmative defense, and that therefore the burden rested upon the defendant to prove it. The claims of proof of the parties are in agreement that early in 1930 the plaintiff "terminated further credit" on the account, and that thereafter all purchases were on a cash basis. While *199
it is alleged in the complaint as amended that $1015.88 is the balance due on the account for purchases prior to 1930, and $77.60 for those subsequently made on a cash basis, the finding discloses no claim by the plaintiff for the specific recovery of the latter items, but rather one for recovery of the whole amount of which they were but a part. These purchases subsequent to 1930 concededly were made, however, within six years before action brought. It sufficiently appears from the charge as given that the court's instructions concerning the defense of the Statute of Limitations were inapplicable to them, and related to those "of the old book balance" only. This balance was one on a running account, and the action to recover thereon is in the nature of one for book debt, so that the statute would run from the last payment made on account. McKeon v. Byington,
The sole and vital disputed question of fact determinative of the question whether the statute constituted a defense, which the jury had to decide, was whether the small cash payments in January, 1932, were made by the defendant upon the old account under circumstances warranting an implication of a promise to pay the balance, or some new promise was made by her, thus tolling the statute, or whether these payments were merely given and received in liquidation of outstanding checks issued for the later purchases on a *200
cash basis, and no new promise was made, as claimed by the defendant. Payments of the latter kind would be ineffective to toll the statute. Boughton v. Boughton,
Another error assigned is the court's charge that "a payment made by her [the plaintiff's] husband without her knowledge and consent would not affect her statutory liability — wouldn't start the statute running again so far as she was concerned." It was undisputed that all the groceries purchased from the plaintiff were for the defendant's household and for the defendant's family, and that some of the dated checks already referred to were given by the defendant and some by her husband. The plaintiff's case falls within the provision of 5155 of the General Statutes that the husband and wife "both shall . . . be liable when any article purchased by either shall have in fact gone to *201
the support of the family, or for the joint benefit of both." The plaintiff's claim is that their obligation is joint, and that therefore a promise by the defendant's husband to pay it, even though made without her knowledge or consent was sufficient to take it out of the Statute of Limitations as to her, and he relies upon decisions of this court as authority. In Clark v. Sigourney,
The three Connecticut cases last cited and others, which are authority for the rule that a part payment by one joint debtor will toll the running of the statute as regards the other, are discussed in this court's opinion in the later case of Broadway Bank Trust Co. v. Longley,
"The principle upon which it [the rule] proceeds, that out of the community of interest represented by the joint obligation arises an agency on the part of each obligor to toll the statute as to the other by part payment or acknowledgment of the debt, clearly has little or no foundation in the actual intent of the parties or in the nature of their relationship. Bell v. Morrison, 26 U.S. (1 Pet.) 351, 367,
The court's failure to charge that payment is an affirmative defense and that the burden of proving it rested upon the defendant, is also assigned as error. In response to the plaintiff's claim for the balance due under the complaint, a defendant's claim of proof relating to the items of the account evidenced by the checks which the plaintiff received, was that the "checks . . . were all paid and there is no outstanding balance on . . . these checks." Section 104 of the Practice Book provides that payment must be specially pleaded. In an ordinary suit to recover for services rendered, or goods sold and delivered, where the ground of action is the defendant's failure to make the payment he was bound to make at the time of the transaction alleged, it is not essential to set forth in the complaint that the debt due remained unpaid at the commencement of the action, although this allegation is usually made, as the forms in the Practice Book suggest to be proper though not required. Morehouse v. Throckmorton,
Whether or not this is the rule ordinarily to be applied, it is not controlling upon the question presented by the present record, where the allegations of the complaint are such as really to put in issue on a general denial the fact of nonpayment as an element of the plaintiff's case. The plaintiff, by the itemized statement in his substituted complaint as amended, set up certain amounts due for goods sold and certain payments received, and alleged a "balance now due and owing." In such a situation, where it is inherent in the very claim of the plaintiff that the amount he seeks to recover is something which is presently owing him, no good reason appears for requiring the defendant to plead payment as a special defense. Be that as it may, however, when, as here, the plaintiff does make such an allegation which the defendant denies, and the issue so raised is tried, without any objection upon the part of the plaintiff so far as the record shows, he, having voluntarily assumed the affirmative upon the issue, cannot claim error because the court charged the jury accordingly. Yanez v. DeRosa,
The only other assigned error requiring mention relates to the court's charge that "a promise to pay a debt will stop the running of the statute where it is a personal, actual debt. A promise of that kind by her [the defendant] to pay somebody else's debt wouldn't be binding." Since the plaintiff claimed that the defendant was liable either as the one who directly purchased the goods, or under the statute if they were in fact purchased by her husband, it is true, as suggested by the plaintiff's criticism, that this language as to the effect upon the tolling of the Statute of Limitations of a new promise by the defendant, is unfortunately worded, and taken by itself confusing rather than helpful. In the light of the court's categorical statement earlier in the charge, however, that even if the goods were bought by Mr. Hoer, since concededly they were delivered to their household and used there for the joint benefit of both, the defendant was liable therefor, and of its further specific reference to the existence of this liability four times more in the course of its brief instructions, the jury could not reasonably have interpreted the words quoted to mean that the defendant's liability under the statute was other than her "personal actual debt" or that it was "somebody else's debt." This instruction cannot be held, therefore, to have been so prejudicial as to constitute reversible error.
There is no error.
In this opinion the other judges concurred.