Borngesser v. Harrison, 12 Wis. 544

Borngesser v. Harrison

12 Wis. 544 | Wis. | 1860

By the Court,

Paine, J.

This was an action on an account for meat delivered on the defendant’s vessel. The defense was, ■ that an action had previously been brought by the plaintiff against ’the defendant upon the same account of which these items formed a part, and a judgment recovered, which, it was claimed, barred this suit, though these items were not claimed in the other suit. The court below charged the jury that if they found such to have been the fact, this suit was barred. We think the instruction was correct The law was so held in Guernsey vs. Carver, 8 Wend., 492, and we think has not been dejjarted from by the courts of Hew York since. The opposite doctrine was held in Massachusetts, in Badger vs. Titcomb, 15 Pick., 415, where it is said that there is no principle of law, nor any other decided case, ■by which the decision in Guernsey vs. Carver could be sustained. But the question is again reviewed by Justice Cow-en, in Bendernagle vs. Cocks, 19 Wend., 207; who showed that .the decision was sustained both by principle and authority. We do not deem it necessary to attempt to add anything to what is said in these cases. But it may be remarked that if *549we understand properly tlxe nature of an account, there is something even in the opinion in the case in which would sustain that decision. The court say that a “running account” will not constitute an entire demand, “ unless there is some agreement to that effect, or some usage or course of dealing from which such an agreement or understanding may be inferred.” Now, although that court evidently did not so regard it, it seems to us that the very fact that there is a “running account” shows the very “course of dealing” from which the “understanding” alluded to ought to be inferred. The very fact that there is such an account imports that the parties have not been accustomed to treat every separate matter of charge as a distinct debt, but on the contrary to enter it in the account to become a part thereof and going to mate up the debt, which consists of the entire balance due. And such, we think, is the general understanding of men with respect to accounts. Eor this reason we think the case of Guernsey vs. Carver is correct upon principle.

But it was claimed by the counsel for the appellant that the case of Secor vs. Sturgis, 16 New York Rep., has overruled this doctrine and established the opposite. But we do not think it should have that effect. In that case the same firm carried on two distinct branches of business, keeping different clerks and separate account books. An account accrued against the defendant in each branch, and it was held that the two did not constitute an entire demand,- so that a recovery upon one would bar the other. This was undoubtedly correct. There was nothing in such a comse of dealing, or in such a mode of keeping the accounts, which would indicate any understanding of the parties that the two accounts should constitute one debt. On the contrary, every thing indicated the opposite intention. And they were, to all intents and purposes, two accounts, and were so spoken of and treated in that case, and we can see no impossibility in there being two accounts in favor of one party against another. Suppose a lawyer is also the owner of a store. He performs legal services for a client, charging them in an account. The same client has an account at the store, which is kept sepa*550rate. The two might he joined in one suit, and so might he within the policy of the law to prevent a multiplicity of suits. But nobody would say they were one account, or that such a mode of doing business indicated any intention or understanding that they were to be blended into one claim. The question in that case was entirely different, therefore, from the one whether each of those accounts could have been divided into as many suits as there were separate and distinct items, and there was nothing in it which called for the comments which the judge delivering the opinion made upon some of the cases already referred to. The rule as stated by him is, that different actions may be brought on the different items of an account which did not arise out of a single transaction, and are not connected together by a contract, and by .this he evidently meant some contract further than that to be implied from the very nature of the account itself. How, if that is so, I have no doubt there are many accounts that might be split up into hundreds of different suits, and thus the rule be made the cause of intolerable oppression. Take the case of a man having a large number of workmen, with an account at a store, but without any special contract beyond that. He draws perhaps several hundred orders in favor of his workmen, which are all charged up in one account. These are separate transactions. Every order, taken alone, would be evidence of a distinct debt. There is no contract that the account shall all be considered one debt. The merchant might therefore bring as many hundred suits as he held orders. And yet everybody knows that the very fact that the parties make these the subject matter of a single account, implies a different understanding. While I think this case was correctly decided, upon its facts, I must therefore be permitted still to think that the previous cases were also correctly decided. And notwithstanding all he says upon the subject, I think the judge in that case admits, after all, the whole foundation upon which the former cases rest. On page 558, he says: “And usually, in the case of a running account, it' may be fairly implied that it is in pursuance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both of the par*551ties. It was suggested here that there were in fact two ae-counts, and there was some evidence tending to show that. the plaintiff intended at first to keep this claim distinct from his general account against the defendant. We think he might have kept it out of that account if he had seen fit. There were reasons, perhaps, why he should. It constituted a claim against the vessel, for which he would have had a lien. For this reason it might very properly have been kept separate from an account composed of items for which he would have had no lien. But he suffered the time within which he might have pursued his lien to expire. And there was evidence tending to show that he afterwards blended this claim in his general account against the defendant, making one account of it. We think the instruction given by the court below fairly implies that the jury must find that this was part of the same account on which the prior suit was brought, before it would be barred. If the plaintiff claimed that there were in fact two accounts, and that this never was treated as a part of the other, the judge might have submitted that question more specifically to the jury if he had been asked to do so. But he was not. On the contrary, the point in contest on the trial seems to have been, whether, if this claim was a part of the same account on which the other suit was brought, an action could still be sustained for this by reason of its being a distinct matter from the other items. Upon that point we think the judge charged correctly, and that if the plaintiff desired to have the point more definitely submitted, as to whether this was a part of the same account, he should have asked an instruction to that effect.

The judgment is affirmed, with costs.