5 Johns. Ch. 522 | New York Court of Chancery | 1821
It has been contended, on the part of the plaintiffs,
1. That this case came within the exception in the statute of limitations, as being an action “ which concerned the trade of merchandize, between merchant and merchant, their factors or servantsand,
2. That the claim contained in the bill, related to the execution of a trust, and, therefore, was not within the statute.
1. To bring a case within the exception in the statute, there must be mutual accounts, and reciprocal demands between two persons. This was so ruled by Mr. J. Denison, in Cotes v. Harris. (Butter’s N. P. 149. 150,) Lord Kenyon said, afterwards, (Peake’s N. P. 121 and 6 Term Rep. 193) that he took a note in that case, and furnished it for publication, and that Denison, J. was well acquainted with the import of the statute, and said, that where all the items were on one side, the last item, though within six years, did not draw after it those of a longer standing. There must be mutual accounts.
In the present case, there was no account current between the parties. There are no mutual and reciprocal demands. The demand is all on one side, except it be the charge of expenses and commissions incident to the very subject matter in question; and I should much doubt whether ■this made it a case of mutual accounts within the meaning of the exception. The defendants took charge of, and agreed to be accountable for, some goods, or the proceeds thereof, in which the parties had a joint interest; and,
But if it were admitted to be a case of merchandize, between merchant and merchant, yet the sale of the goods, and the receipt of the proceeds by the defendants, and their accountability for them, were all prior to six years before filing the bill, and it becomes a very serious question whether the statute does not apply to such a case. The question has been much discussed, and given rise to contradictory opinions and decisions, and seems not to be definitively settled at Westminster Hall, even to this day.
It has been contended on one side, that the exception in the statute of limitations, expressly, and without any qualification, excludes merchant’s accounts, and that if it appears in the case, that the action concerned the trade of merchandize between merchant and merchant, no length of time was a bar, as the exception in the statute prevented its application absolutely to such a case.
The case of Sandys v. Bladwell, (Sir William Jones, 401.) contains an observation to that effect. An account was made between F. and B., both merchants, and B. acknowleged 1,200 pounds due, and F. claimed more, and before the whole account was finished, F. died. His executor filed a bill against B., who pleaded the statute of limitations; and Jones, Cooke and Barlceley, justices, to whom it was referred from Chancery, certified it was no bar, because .the account was not ended, and because it was between merchants.
The last ground taken by the judges .of the K. B., in this case, viz. because it was between merchants, goes to prove, that matters of merchandize, between merchants, were not within the statute of limitations. But this whole case is too loose and concise to be of much authority, and
On the other side, there is a class of cases, which go to show, that the exception in the statute of limitations extends, even as to merchants’ accounts, only to cases 'll which there had been some transactions within six years. In such cases, the items within the time, will draw to them and protect all the prior items in an open and running account, though reaching beyond the six years. There are several pretty strong cases, and some adjudications on the point.
In Webber v. Tivill, (2 Saund. 124.) the suit was assumpsit, by a merchant against a merchant, and a plea of the statute of limitations. The replication averred, that the promises arose on trade, between merchant and mer
We come next to the decision of Lord Rosslyn, in Craw-, ford v. Liddell, in 1796, which appears to be also directly in point, if we may rely upon an imperfect note of the case, as cited by the counsel, in Jones v. Pengree, 6 Vesey, 580. It was a bill for an account, and a plea of the statute, with an averment, that it was not a merchant’s account. The Lord" Chancellor held, that the meaning of the exception in the statute was, that if any transactions between the parties took place within six years, none of the transactions should be barred; but that when all the transactions were over six years, the statute might be pleaded, as well to merchants’ accounts as others; and the plea was allowed. This opinion was in accordance with the prior decision of Lord North-, ington.
But, notwithstanding these several strong opinions and' decisions, the question was not considered as settled ; and the facts in the cases cited were, perhaps, viewed as not bringing up the very point now under discussion. In Jones v. Pengree (6 Vesey, 580.) the same question was¡ raised and discussed, and most of the cases on the point cited; But the cause went off on another point, and no opinion was expressed by Lord Eldon on the question. The same thing may be said of the case of Duff v. East India Company, (15 Vesey, 198.) where the question was very fully discussed, and treated as an open question The two points raised,
The Master of the Rolls decided the cause on other grounds, and took no notice of this point.
In Barber v. Barber, (18 Vesey, 286.) the question was again brought before Sir Wm. Grant, the master of the rolls. It was a bill for an account against the representatives of a surviving partner, and a plea of the statute of limitations. The counsel on one side contended, that, as all dealings had ceased above six years, the statute was a bar to merchants’ accounts, and the counsel on the other side insisted, that merchants’ accounts were excepted by the words of the statute. It was decided that the case was within the statute, as all accounts had ceased for six years.
This case would seem to have been sufficient to have ended, forever, all further agitation of this old and vexed question. But afterwards", in Foster v. Hodgson, (19 Vesey, 180.) the very same point came again before Lord Eldon. It was a bill upon an open and running account, The defendant was a banker and the plaintiff a merchant. There was no settlement or demand for 12 years, and a demurrer wras
Thus stands this question upon the English authorities, It still remains to be definitively settled, though I think the weight of authority is much in favour of the application of the statute to open merchants’ accounts, when the item is above six years before the commencement of the suit; and it is rather surprising, that Lord Eldon should Consider the point as still unsettled, after the decisions of Lord Norlhinglon, Lord Rosslyn, and Sir Wrn. Grant. In Ranchander v. Hammond, (2 Johns. Rep. 200.) our Supreme Court considered, that the English decisions applied entirely to our statute, notwithstanding some slight variation in the phraseology of ¡he act; and that the exception in the act applied only to open and current accounts,
Assuming the case before me to be one that concerned the trade of merchandize between merchant and merchant, I should rather be inclined to think the .statute was well pleaded, and that the case did not fall within the exception. It is not, however, necessary to give any decided opinion on the question, because the case does not require it, as it seems not to be a case of mutual accounts, and so not within the exception. But •as the general question was made a point upon the argument, and as it is not altogether settled, whether such a case as the one presented by the pleadings, might not be deemed to fall within the exception to the statute, I thought it would be useful to review the principal cases on this much litigated subject.
2. The1 other.ground, taken .by the plaintiff’s counsel, appears to me to be decisive, in their favour, and to take the case out of the statute, without having recourse-to aproviso-, which, if originally clear upo.n the text itself, has been rendered perplexed and litigious, by the commentaries of counsel, and ‘the contradictory doubts and decisions of 'Courts.
If there was a trust-created in the defendants, to account as agents or trustees, for these goods, or the avails thereof, the case is not within the statute, for that does not reach to matters of'direct trust, as between trustee and cestui que trust. (Vide the cases referred to in 1 Eq. Cas. Abr. 303. A. and 3 Johns. Ch. Rep. 216. 222.) It appears very clearly, that here was a trust, a deposit to be accounted fór.
I shall, accordingly, on this second ground, overrule the plea, and reserve the question of costs, until the final hearing, and direct the defendants to answer in four weeks, after service upon their solicitor of a copy of this order.
Order accordingly.