No. 8367 | Minn. | Oct 20, 1893
The complaint in this action, which was commenced in justice court, consisted of an itemized account, running through several years, for goods, wares, etc., sold and delivered by plaintiff to defendant, and of credits for cash paid by defendant on the account each year, and showing a balance due to plaintiff. One of the early items in this account was one of $16 for an order for that amount given to plaintiff on defendant by one Orbeck, to whom defendant was indebted in that amount for work. Defendant had accepted the order, and plaintiff charged him with it in his account, which was open and current. This was in 1885. The account remained open and current down to the latter part of 1891. There was evidence tending to prove that at the time plaintiff received the order he told defendant that he had charged him with it on his account, and that defendant consented to this being done. Each year thereafter plaintiff sent to defendant a statement of his book account, which included this item of the amount of the order, to which the defendant made no objection, but yearly made payments, generally, oh the account. It is conceded that, if this item of $16 is a proper part of the account, then, because of these yearly payments, no part of the account is barred by the statute of limitations.
The justice rendered judgment in favor of the plaintiff for the balance due on the account as claimed in the complaint. Upon appeal to the district court on questions of law alone the court reversed the justice, apparently on the ground that this item, being evidenced by a written order accepted by the defendant, was no proper part of the account, but a separate and distinct cause of action, and, being such, was barred by the statute. In this the court erred. It was entirely competent for the parties to agree that it should be made a part of the book account. This is what the evidence showed they did, not only by express agreement, in the first instance, but also impliedly, by their subsequent conduct running through a number of years. To allow defendant now to go back on this agreement for the purpose of enabling him to avail himself of the statute of limitations would be neither justice nor good law. Perrine v. Hotchkiss, 2 Thomp. & C. 370, and Stickney v. Eaton, 4 Allen, 108, principally relied on by the defendant, are not at all in point, as will be readily discovered upon a careful examination of the facts in those cases.
Judgment reversed, and cause remanded, with directions to tbe district court to enter judgment affirming tbe judgment of tbe justice.