55 Vt. 354 | Vt. | 1883
The opinion of the court was delivered by
The action is general assumpsit and was referred. The parties had mutual deal and accounts. The plaintiff’s specifications consist of book charges covering a period from 1852 to 1874. The defendant filed a plea in offset and presented specifications consisting of. charges from 1852 to September, 1858, and
The referee reports that the writ was dated January 28, 1879, and was served April. 21, 1879, but does not say anything more as to when the writ was issued. The defendant claims that under such findings the date of the service and not the date of the writ was the commencement of this action. The rule is settle^ that the taking out of a writ is the commencement of an action to save the Statute of Limitations, if delivered for service in season to be served and returned to the court to which it is made returnable and is so served ; and the date of the writ is prima fade evidence that it issued at that date. Allen v. Mann, 1 D. Chip. 94; Day v. Lamb, 7 Vt. 426. No question is made but that this writ was seasonably served and returned. We think the rule applies in this case.
The transaction constituting the credit claimed by the plaintiff occurred in June and July, 1873, which was within six years next before the date of the writ. In respect to this the referee reports as follows : “In 1873 defendant ran a meat cart, and hired one Thompson to peddle and deliver meat, and furnished him with a book in which to keep accounts of meat sold and trusted. Thompson had no instructions from defendant in respect to selling or trusting plaintiff for meat, until after the meat for which I have allowed defendant had been delivered and charged by Thompson on defendant’s book. Defendant then saw these charges, and found fault with Thompson for selling and trusting defendant for the meat, and requested him not to sell and trust.him for more. Defendant did not intend to have Thompson give plaintiff credit for meat. But he did not make his intention known to plaintiff, nor to Thompson until the meat had been delivered and charged.”
The defendant did not embrace these items in his specifications, and denies that the plaintiff is entitled to have' them allowed as a credit in his behalf, and thereby save the running of the statute. We think that this question is controlled bj Davis v. Smith, 48 Vt. 52. It was there held that the true inquiry is^ whether the item
It had been previously held that in case of mutual dealings and accounts, the cause of action dates from the last item of credit, and has reference to the balance of the general account, and each new item of credit, or part payment, is equivalent to a new .promise to account and pay the balance due, where such new item is with the mutual understanding, express or implied, that it is to enter into the mutual dealings or accounts of the parties, and be the subject of future adjustment in ascertaining the general balance due. Abbott v. Keith, 11 Vt. 525; Hodge v. Manley, 25 Vt. 210.
There were these long standing mutual dealings and accounts between these parties. Within three months before this meat transaction the plaintiff had made a charge against the defendant for legal services rendered. The defendant’s agent had general authority to sell meat on credit, and there was no restriction as to the plaintiff. The sale and charge to him was within the agent’s authority. The plaintiff had as much reason to rely upon it as an item of charge against him, to be the subject of future adjustment in ascertaining the general balance, and as affecting the whole account, as upon any other item in their dealings. He evidently did so rely upon it. It occurred naturally and in ordinary course. The defendant knew of it soon after the transaction, yet gave no notice to the plaintiff that it was in fact contrary to his intention and that he should not treat it as an item of charge in their mutual dealings and accounts; but it has all the time stood on the original book where it was made without a note of warning. It seems to us too late to drop it out of the account now. It looks like an afterthought. It represents a legal indebtedness, and upon the facts reported should go into the account. The defendant'cannot now be allowed to say that this particular transaction in this long course of dealing shall not have the ordinary effect which was fairly to be expected from it.
One item of charge allowed the plaintiff and objected to by the defendant was five dollars for the use of certain land by the de
We think upon the facts found the item is recoverable in assumpsit, although there was no count in the declaration for use and occupation. The plaintiff rendered his guardian account and made this paymeut in settlement in reliance upon the defendant’s promise, which promise was subsequently renewed by the defendant knowing the facts and intending the item should be charged against him and be adjusted with the other items. It was in substance an authorized payment in behalf of the defendant, which the defendant subsequently promised the plaintiff to repay to him.
The judgment of the County Court is reversed, and judgment for the plaintiff to recover of the defendant the sum of $3.32 with interest.
