Chapman v. Hogg

135 Mo. App. 654 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts). — We are unable to distinguish this case in any of its phases from that of Loeffel v. Hoss, 11 Mo. App. 133. Commencing an account for án ordinary butcher’s or mar-ketman’s bill in January, 1892, the transactions between appellant and respondent ran along until the ninetieth of November, 1902. Counsel for appellant and respondent both set out in their statements filed in the case, that the last item in the account prior to the item of February 27, 1907, was September 20, 1902. They are not borne out in this by the account filed, for the last item contained in that account, so far as the date is concerned, consists of a charge of sixty cents for meat, charged November 19, 1902. The three items charging Chapman with livery rigs, July 17th, August 15th and September -20, 1902, were apparently entered on appellant’s ledger 10, page 463, after the closing of the account November 19,1902, for while dated in July, August and September, 1902, they were not entered until afterwards, and appear to be on pages 564 and 565, ledger 10, the latter page being that on which the entries of February twenty-seventh and May 4, 1907, were also entered, so that instead of the last item of charge in the account current being dated September 20, 1902, as stated by counsel, it appears in this account to be of date November 19, 1902. That is not very material and is only stated here to follow the record correctly, for whether the last item was September 19, 1902, or November 19, 1902, as this suit was instituted on the twentieth of December, 1907, the five-year statute had run and this counterclaim was not filed until January 6, 1908. As was true in the case of Loeffel v. Hoss, supra, there is no evidence whatever that there was any assent on the part of Chapman to carrying of the hay item into the account current between the parties, and the testimony shows affirmatively that no account, showing a debit and credit connected with the transaction of 1907, had ever been presented-to the respondent, or that he ever knew that there was any claim made by the appellant that he had debited and credited that item on the old account. This appears by the testimony of appellant and his witnesses, for the former testifies that the last time he took up the account seriously with respondent was in 1897, and the former show' that the last time they presented the account to respondent was long before the hay transaction. The first notice that the respondent seems to have had of any intention to offset the hay purchase against the old account, was when he sent his son-in-law to collect the balance due on the hay bill from the appellant, when the appellant then first informed him that he had entered it np> on the old account. Whereupon respondent appears to have at once commenced this suit. To repeat, under these facts, we see no possible way of distinguishing this case from that of Loeffei v. Hoss, supra, and the direction given by the court to the jury is sustained by the decision in that case.

The learned counsel for the appellant cites among many other cases, the case of Chadwick v. Chadwick, 115 Mo. 581, in support of his contention that the defendant’s set-off, being based upon a mutual, open and current account, embracing reciprocal demands between the parties, was not barred by the five-year Statute of Limitations, for the reason that the last item on the account, May 4, 1907, was but a continuation of and an item in an open, running account, and that therefore the whole account is brought within the statute. The decisions in Chadwick v. Chadwick, supra, and in the other cases there cited, do not sustain this contention. In Chadwick v. Chadwick, our Supreme Court said at page 587, that the dealings between the parties continued with mutual debits and credits between them; that while one line of dealing with reference to certain cattle had ceased, yet that the proof .was clear, that after that the plaintiff had continued to borrow money from the defendant; that sometimes he paid it back in a few days, but that it stands admitted that he still owes defendant something on account of different sums so borrowed, after the close of the cattle transactions between them, and that there is certainly evidence tending to show that the dealings between the parties continued after they had discontinued as to the cattle business. That, however, is not this case. The account in evidence shows an absolute cessation of all dealings between the plaintiff and defendant between the nineteeth of November, 1902, and February 27, 1907. On the authority of the case of Loeffler v. Hoss, supra, therefore, we are compelled to affirm the judgment of the lower court in this case, which we accordingly do.

All concur.