8 Mo. App. 167 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This is a suit to recover for legal services rendered by the plaintiff’s intestate to the defendants’ intestate, in December, 1868, and later. The case was referred, and the referee found for the plaintiff. The only dispute is in regard to an item set up as a counter-claim by the defendants. The defendants contend that the referee, and the court below which confirmed the report, erred in refusing to allow $330, money which was retained by Mauro, the attorney, under the following circumstances : It appears that more than five years before this suit was brought, the defendants’ intestate, Hall, employed Mauro to prosecute a demand against one Porter; that in February, 1868, Mauro compromised a judgment obtained in the matter for $680, and retained out of the sum $380, paying the rest to Hall. The defendant, assuming that $50 was a proper fee, sets up a counter-claim-of $330, to which the plaintiff pleads the Statute of Limitations. On the defendants’ part it is contended that the dealings between the parties constituted a “ mutual, open, and current account,” and that accordingly the limitation runs, not from the date when the money was
If proper distinctions are made, it would seem that there is not necessarily any antagonism between the decisions in this State on the subject of the bar of the statute as applied to open, running accounts and the current of authority in other States. In the anxiety to provide that merchants’ mutual accounts should preserve their continuity as demands, or causes of action, early statutes, similar to the section just cited, but expressed in less general terms, were passed in many of the States ; but it may be doubted whether they were necessary, except from abundant caution. In their language they relate only, as the above section does, to mutual accounts, and the great body of decisions hold that no accounts are within this provision unless each party makes charges against the other. It is not easy to see how that can be held, to quote the words of the above section, “ a balance due on a mutual, open, and current account, where there have been reciprocal demands between the parties,” where, in fact, there is no balance, no mutuality, and where there are no reciprocal demands. Thus, if A. furnishes goods to B. on open, account, extending through many years, but B. furnishes nothing to A., certainly the account is not a mutual account; yet it is clear that if, at the outset, A. and B. have agreed that these goods shall all be furnished and paid for under one contract, the mere fact that all the goods are not needed, and so are not delivered at the same date, does not prevent the transaction, though extending over a long period, from being one transaction. In calculating the time from which the Statute of Limitations should run in such a case, regard must of course be paid to the time when the right of action accrues. But, under the agreement put, the cause of action would not accrue until all the goods were delivered. The seller would have no right to split his demand
But, in the absence of evidence, there is no presumption that all the items of an account constitute one demand. This must be proved. In the case at bar the referee found the account was not a running account, and, though the statute has no application, his finding as to the fact was correct. Mauro, though he was the attorney of Hall, was not employed under any general arrangement. These legal charges for suits and other matters have no connection with each other analogous to that between items of goods, for instance, furnished by a tradesman to his customer. See Hale’s Executors v. Ard’s Executors, 48 Pa. St. 24. The employment related to each case, and stood on the basis of a contract by itself; while the evidence as to the course of dealing need not be discussed, since, if it were stronger, its
The judgment is affirmed.
