74 Ga. 555 | Ga. | 1885
On February 8, 1878, D. F. Gunn filed Ms action of complaint on account against his brother, U. M. Gunn. The bill of particulars thereto annexed is an itemized account, containing both debits and credits. The first item, dated February 25, 1867, is “ by paid taxes $395.55,” being a credit in favor of U. M.. Gunn. The second item is also a credit of “cash,” about a month later. Then follow eight items of debits, amounting to about $1,000, scattered along from May of that year to the following -February. Then succeed about fifty large items, dated in almost every month down to the end of 1870, and nearly'equally divided in number, between debits and credits. The last credit item is $100 in cash, dated February 25,1871. Beginning in the next month, and coming along in every year, except 1874 and 1875, appear debit items of large amounts of cash. There is one item in' 1876, and the last one is $30, February 14,1877. . .
To. this suit the defendant, below pleaded the general issue, payment, and the statute of limitations, or the lapse of four years since the cause of action accrued. The jury found, for the plaintiff a large balance.
The court below overruled a motion for a new trial, of which, besides the formal complaints against the finding of the jury, the following wére the grounds :
(1.) Because the court erred in charging the jury (hat the account sued on was a mutual account, if they believed from the-evidence that the'items thereof showed that at various times the respective parties were indebted to each other for money advanced, or goods furnished, and did not show that the credits in -favor of defendant were mere items of payment on his indebtedness to plaintiff. .
(3.) Because the court erred in charging the jury that, if they believed such account was mutual, and there had been no settlement, it still would not be barred till four years from the dato of the last item, although there might have been periods of two years or more when there were no dealings between said parties, and although all the items, for more than four years prior to the date of said suit, were in favor of plaintiff against defendant, and there were none in favor of defendant against plaintiff.
(4.) Because the court erred in charging the jury that, if they believed said account was mutual, and that there had been no settlement, and that the parties had no dealings between them from December 9,1873, to some time in 1876, and that in 1876 and 1877, there were two other items added to said account, both debits against defendant and in favor of plaintiff, still said account • would not be barred till four years from the date of the last item in said account; but if they should find said two items incorrect and not proper charges against defendant, or were mere gifts and fees, then said account was barred. -
The testimony from each side plainly showed that the credit items were not payments; and that from the first item in tho account to the last credit, February 25, 1871, except one debit “ for a horse,” the account was made up. of mutual loans and advancements of money. The law is well settled, and disputed by neither party in this case, that the making of payments on an account, whether credited thereon by proper entries or account of them kept
The question whether the statement sued on was a case of mutual.and reciprocal accounts, was a question of fact for the jury, and to them the judge fairly submitted it. They found it to be such. The defendant himself testified that up to 1873, the dealings between him and plaintiff. were carried on “ upon the mutual confidence basis.” “ I borrowed from him,” says he, “ and loaned him money; and he borrowed from me and loaned me money.” The defendant also testified that he kept no written accounts of their dealings, but that his brother kept the account of both sides. This makes no difference. Thus it is conceded that, from its incipiency until February 25,1871, the case between the parties was one of mutual and reciprocal- credits and debits. But defendant below insists that this quality of mutuality, or reciprocity, ceased at the date last aforesaid, because from that time, all the credits were on the other side; consequently he claims that the statute of limitation began to run in his favor from that time; and that four years having elapsed from then till the filing .of the suit, all of the items antedating . that last credit in his favor are barred.
The charges complained of all assumed that the mere fact that the last credit to defendant was at the time stated, did
In Wait’s Actions and Defences, Yol. 7, pp. 266 and 267, it is said, “ It is not sufficient that there are items on both sides of the .account; there must be items within the period of limitations on both sides.” Of like import is Greenleaf on Ev., Yol. 2, §445. The learned .commentator first named cites several cases iji support of this view. Those of them most' directly in point are Gulick & Princeton, etc., vs. Turnpike Company, 14 N. J. Law Rep., 545, and Belles vs. Belles, 7 Halstead, 389. Both of these precedents coming from the Supreme Court of New Jersey, and' the latter being cited in the former as one of the main leaders, let us first examine it. This was a case in which the judge below refused, when requested, to charge the jury, “ that there was no evidence in the cause, from which the jury ought to infer a new promise to take the case out of the statute,” and that all the items of plaintiff’s account which were over six years old at the beginning of his suit were barred. Two opinions were delivered. Oh. J. Ewing says: “ The three principal items of the debit side of plaintiff’s state of demand were of long standing, the first in 1809, for work at farming by himself and horse; the second, in 1813, for money received by the,defendant for a particular purpose and not. so applied; the third, in 1817
In Gulick & Princeton, etc., vs. Turnpike Co., from the same court, Oh. J. Hornblower cites Belles vs. Belles as a main support to his ruling, and says that the rule is correctly stated therein. We have seen that Belles vs. Belles does not go the length to which- we shall see that court
Upon the authority just quoted, we have these criticisms to make : First, unquestionably it is in precise point; secondly, it is not fairly supported by the previous case of Belles vs. Belles; thirdly, it is clearly based on a mistaken notion of the foundation of the doctrine which saves mutual accounts from the operation of the statute. To illustrate this last proposition, we observe that the judge quotes the language of Lord Kenyon in Catlyn vs. Scoulding, 6 Term Rep., 189, one of the earliest authorities within our reach in favor of this general doctrine. In that case, there were charges in favor of each party within the statute, and Lord Kenyon says: “ I take it to have been clearly settled, as long as I have any memory of the practice of the courts, that every new item and credit in an account given.
The Supreme Court of New Jersey took this language as showing that the reason why the plaintiff’s account, in any case, was saved from the operation of the statute was that the defendant had made an admission of outstanding •accounts in f%vor of the plaintiff, in the nature of a new promise, capable of stopping the running of the statute, or even of removing the bar already matured. They therefore concluded that nothing but the defendant’s own words or acts could be construed into an admission or promise by •him. The moment, therefore, when he ceased to make entries against the plaintiff, he ceased to make admissions against himself or new promises. The reasoning by which the general doctrine was supported by"the courts (when so understood) was not inaptly termed by Justice Hornblower, “ the artificial reasoning which has prevailed on this subject.”
Upon the .same erroneous notion of the reason of the rule is founded that argument against the entire doctrine by which the court seems to triumph against it, in Blair vs. Drew, 6 N. H., 235. The New Hampshire judge scouts the idea- that a credit, entered by the plain- - tiff on his account of debits against defendant, can be -construed into an admission by the defendant. He even goes further, and with unimpeachable logic maintains that, even if defendant keeps an account against the plaintiff, a charge which he makes against the plaintiff cannot amount to an admission that he owes the plaintiff any. thing. The reasoning is conclusive, but the heavy blows •of the court’s logic are laid upon a man of straw. It is not to be denied that the languageof Lord Kenyon,above quoted, gives much plausibility to such construction and
In Angelí on Limitations, 136, it is said: “Mutual accounts are made up of matters cf set-off. There must be a mutual credit, founded on a subsisting debt on- the other side, or an express or implied agreement for a set-off of mutual debts. A natural equity arises, where there is an existing debt on one side, which constitutes a ground of credit on the other, or where there is an express or implied understanding that mutual debts shall be a satisfaction or set-off pro tanto between the parties.” In Abbot vs. Keith, 11 Vt., 525, the court says: “In ordinal y cases of mutual dealings, no obligation is created in regard to each particular item, but only for the balance. And it is the constantly varying balance which is the debt.” In
If such be the real foundation of the doctrine, that the statute of limitations does not apply to mutual accounts, while the mutuality continues,,it is evident that arguments and decisions, based on the false theory that it rests on “ the artificial reason ” of admission or new promise, ought to have little weight in determining to what matters its spirit, reason and purpose make it applicable. If such be the foundation of the rule, we perceive why the statute óf New York, declaring, as the court held, the common law, provided that the statute of limitations should begin to run from the last item in a mutual account on either side. The Supreme Court of that state (5 Lansing Rep.,
We forbear to make more extensive quotations. The rule here laid down, though disregarded by some courts, on the erroneous reasoning already discussed, stands supported by the great mass of authorities. See 35 Am. R., 501; 79 N. Y., 1; 20 Wend., 72; 9 Id., 125, 126 ; 6 Cow. N. Y., 195; 7 Wend., 322 ; 5 Johns. Chanc., 522, ; 5 Cranch, 15; 3 Met., 216; 2 Mass., 217; 6 Pick., 364; 8 Id., 187; 1 Hill’s S. C., 292; 12 Texas, 374, 420; 18 Ala., 274; 2 Port. (Ala.), 351; 19 Miss. (4 Bennet), 42; 20 Miss., 13; 20 Mo. Rep., 13; 2 Blackf., 340; 4 Sandf., 329; 2 Id., 125-7; 1 Chit. Pr., 777 ; Peake’s Cases, 121; 2 Esp. R., 569; 41 Ga , 44, 58, 66, 49, 54, 190; Ford vs. Clark, 72 Ga., 760; Flournoy & Epping vs. Wooten, 71 Ga., 168.
In the argument of counsel, much stress was laid upon the fact of a hiatus between the items of the account, in this, that from 1873 to 1876 there is no item on either side-Our reply to that is that no hiatus less than the period of limitations could, of itself, operate as a bar, or even effect or demonstrate an-annulling of the implied understanding,
It' has also been declared to be an .absurdity, that the plaintiff, by charging one or two additional items, and those small ones, after a three years’ interruption of dealings, could be held to have drawn the whole account against the defendant so far forward as to be out of reach of the statute of limitations. It seemed to counsel to give the plaintiff an unfair advantage. To this view, we simply reply, that the defendant voluntarily so acted with the plaintiff, mutually borrowing and lending, as, in the opin'ion of the juy3r, to justify the implication of a treaty between them to deal with each other “ on a basis of mutual confidence.” This state of things being once established, the law and the jury presumed its continuance till some evidence of its termination by both or’ either. Defendant could have ended it any day by demanding a settlement, or plainly refusing so to deal any longer. But instead of taking"steps to bring this mutual understanding to an end, it suited him better to take the benefit of plaintiff’s reliance upon-its continuance and obtain further loans. Such, at least, is the fair construction of the case, if we accept the jury’s finding against'his plea of payment or settlement.
We' hold that either party could have paused at any item and demanded settlement of the existing balance. Such a demand could have been made in legal proceedings by suit. But so long as both parties saw fit not to move in the matter, there was no principle of law to break up the treaty, save the statute of limitations running from
Let the judgment of the court below be affirmed.