Hebinger v. Ross

175 Mich. 241 | Mich. | 1913

Ostrander, J.

(after stating the facts). 1. Was this suit begun to recover upon a mutual and open account current? It does not appear that plaintiff opened or kept an account with defendants. The case made for plaintiff, at the trial, tended to prove the making of the written contract heretofore referred to; that, pursuant thereto, on various days, the first one January 27th and the last one March 16th, he loaded and sent to defendants a total of 74 car loads of logs, containing 3,375 pieces, scaling 179,130 feet, worth, at $7.50 per thousand, $1,343.47; that defendants ought to have credit for $900 paid to plaintiff in cash and for $23.37 for a freight allowance on account of some car loads containing less than the contract minimum quantity of logs. It does not appear that defendants opened or kept an account with plaintiff. They made a statement, it is true, and sent it to plaintiff; but a comparison of the two statements produced by plaintiff at the trial, one made by plaintiff and the other by defendants, does not make it clear that they relate to the same transaction. In the statement prepared by plaintiff, it is indicated that the last logs were loaded March 16th. In the statement prepared by defendants, the last credit for logs is under date March 22d. Both show the sum of $900, paid in cash by defendants and received by plaintiff. Beyond this, the statements are apparently made according to wholly different theories. In defendants’ statement plaintiff is credited with logs at various prices per thousand feet — some at $7, some at $19,, and some at $8, $9 and $12 per thousand. It is true that in the statement prepared by defendants, and. sent to plaintiff, in which the last items appear under date March 22d, a balance is struck and brought down,, showing $2.54 due to plaintiff. Mathematically, this, balance is the correct one, was the correct balance on. March 22d, and until a new or further item is entered, will always be the correct balance. Otherwise, it is not a proved item of the account.

Turning our attention to the contract sued upon, we find that plaintiff was entitled thereby to be paid for logs, in cash, on receipt of scale bills. There is no. testimony showing when scale bills were received except that furnished by the credit which in their statement defendants gave to plaintiff. Accepting this, plaintiff’s right of action accrued March 22d, and this suit was not begun within six years thereafter. See, upon this subject, Kimball v. Kimball, 16 Mich. 211, 217, 218; Campbell v. White, 22 Mich. 178, 25 Mich. 463; Sperry v. Moore’s Estate, 42 Mich. 353 (4 N. W. 13). Compare In re Hiscock, 79 Mich. 536 (44 N. W. 947); Lester v. Thompson, 91 Mich. 245 (51 N. W. 893); Hollywood v. Reed, 55 Mich. 308 (21 N. W. 313); Id., 57 Mich. 234 (23 N. W. 792).

2. Was the statement rendered to the plaintiff by the defendants, their letter of April 6, 1905, and the accompanying check, an acknowledgment of a continuing contract, within the meaning of the statute? It negatives the existence then, or at any time, of the contract sued upon and relied upon by plaintiff at the trial. We think this is a fact of importance. The present action is founded upon an express contract. The terms of the contract are asserted by plaintiff, and testimony was offered by him tending to prove the contract declared upon. The alleged acknowledgment of defendants of former dealings of the parties is not evidence of the continuance of that contract. The provision of the statute relied upon by plaintiff applies “in actions founded upon contract express or implied.” It is that “no acknowledgment * * * shall be evidence of a continuing contract, * * * unless * * * contained * * * in some writing. * * V’¹ An acknowledgment which would be evidence that a particular contract was continuing would not be evidence that another and different contract was continuing. The acknowledgment relied upon in this case is not a general acknowledgment which may be referred to any existing contract. The letter, read with the statement, and the check, refers to a particular dealing,- or course of dealing, not the one sued upon. Aside from this consideration, the writings relied upon negative acknowledgment of a continuing contract. They amount, at most, to an admission that the defendants had had certain logs, or lumber, of the plaintiff, the last on March 22d, and that they owed him on that day, namely, on March 22d, a balance of $2.54.

An express denial that a contract is continuing cannot be treated as an acknowledgment that it is continuing. We have examined Crane v. Abel, 67 Mich. 242 (34 N. W. 658) ; In re Estate of King, 94 Mich. 411 (54 N. W. 178); Rumsey v. Settle’s Estate, 120 Mich. 372 (79 N. W. 579); Jewell v. Jewell’s Estate, 139 Mich. 578 (102 N. W. 1059); McGregor v. McGregor’s Estate, 156 Mich. 487 (120 N. W. 1071); Walsh v. Mayer, 111 U. S. 31 (4 Sup. Ct. 260) — as well as various decisions of the courts of sister States to which we are referred by counsel for plaintiff, with the result that we think none of them supports the contention of plaintiff that the letter, statement and check of April 6th are, within the meaning of our statute, an acknowledgment, whereby to take the case out of the provisions of the statute. We recognize the fact that some distinctions may be made between cases where an acknowledgment is made before a demand is barred by the statute and those where a promise is relied upon to revive or restore a demand barred by the statute at the time the promise is given. See Home Life Ins. Co. v. Elwell, 111 Mich. 689, 692 (70 N. W. 334), and cases cited in opinion; Miner v. Lorman, 56 Mich. 212, 216 (22 N. W. 265); Craig v. Seitz, 63 Mich. 727 (30 N. W. 347). But we perceive no reason for saying that an acknowledgment must be less distinct and unqualified than a promise made under similar circumstances; that is, if both are made before, or both made after, the demand is barred, in either case one must be as unqualified as the other. An acknowledgment that a certain sum is due is not to be treated differently from a new promise to pay a certain sum.

The judgment must be, and it is, affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.

1 3 Comp. Laws, § 9740, 5 How. Stat. (2d Ed.) §14147.