14 N.M. 282 | N.M. | 1907
It appears that the appellant was employed by appellee from 1893 to 1902 in the capacity of book-keeper, and cashier, and was also a director of the-plaintiff corporation. During this time an account was-carried in the books of appellee with appellant in which were charged goods and money, as received by appellant, and in which was credited monthly salary and extra allowances at the end of each month. At the end of each fiscal year of appellee the account was balanced and the balance brought down as the first item of the next year’s account. Interest at six per cent, per annum was charged or credited at the end of each fiscal year on average-monthly balances for or against appellee, as the case might be, and brought down as a part of the balance and first item of the account for the next year.
The appellant admits in the second paragraph of his-answer that the account was a stated account at the end of each fiscal year, but insists that the balance of such annual stated account cannot be included in the succeeding annual current account.
1. The first question therefore is as to whether a balance of a previous stated account can be included as one of the items of a succeeding current account, and whether the statute of limitations does not a-pply to such balance, notwithstanding its inclusion,in the succeeding current account.
Upon authority there is no fundamental objection to a balance of a stated account becoming an item of a succeeding current account. 1 Cyc. 367; Dows v. Durfee, 10 Barb. (N. Y.) 212; Fleischner v. Kubli, 20 Or. 328. 25 Pac. 1086; Gibson v. Sumner, 6 Vt. 163; Auzerias v. Naglee, 15 Pac. 371; Union Bank v. Knapp, 3 Pic. (Mass.) 96.
We have examined the cases cited by counsel for appellant and find them not opposed to this conclusion. Chase v. Trofford, 116 Mass. 529, is a case holding that the stating of an account more than six years after the last item in a current account did not revive the debt as to such items and take it out of the statute because the account was not stated in writing. Belchertown v. Bridgman, 118 Mass. 486, was a case where an attempt was made to question the correctness of a balance more- than six years old, and it was held that the same could not be done. Porter v. Ry. Co., 99 Ia. 351, was a case where the balance of a stated account was not carried forward into the succeeding current account, and it was held that the statute of limitations had run against such balance.
The same doctrine applies to the claim of appellant for additional salary of fifty dollars per month over and above the amount with which he was credited. There 3s no claim of fraud or mistake, in the absence of which the account cannot be impeached. 1 Cyc. 454, Oil Co. v. Van Etten, 107 U. S. 325. And even if it were an open question of fact as to the fifty dollars per month additional salary we think the trial court correctly found against the appellant on that issiie.
The amendment is allowed under Section 94 of the Code of Civil Procedure.
We find no error in the record and the judgment of the lower court is affirmed, and it is so ordered.