25 Vt. 210 | Vt. | 1853
The opinion of the court was delivered by
The auditor has reported a balance of accounts due the plaintiff, subject to the question, whether the same is barred by the statute of limitations. The fact reported by the auditor, that the plaintiff was engaged in different employments, and that separate day-books were kept for each, can' make no important difference in the case, as the rights of the parties cannot be affected by the mere mode of keeping the account. In whatever manner the charges are entered, if, by their mutual expectation, they were all made with reference to a future settlement and adjustment, they are to be treated as one account, and as if entered in one common day-book.
It has uniformly been held, that distinct and different items of charge, in an open and mutual account, do not constitute separate claims; but that the claim or debt is found in the balance of the account ; and that it is the balance only, that constitutes the claim of the party to whom it is due. ■ When the account is all on one side, it has not the character of mutual accounts, and, so far as the statute of limitations is concerned, the cause of action arises from the date of each item; and they are respectively barred, when more than six years have intervened between then- dates and the commencement of the suit. In the case of mutual accounts, if more than six years have elapsed since the last item of charge and • credit, and the commencement of the suit, the whole account is barred. The remedy of the party thereon is taken away by the statute. But in relation to such accounts, the decisions have been uniform, that the cause of action accrues from the last item, and has reference to the balance of the general account; and that every item of credit removes the effect and operation of the statute from all previous charges, so that the statute commen
The application of these principles to this case is rendered in some respects difficult, from the want of a more specific report of facts from the auditor. From the transcript of the account of these parties, which has been sent up with the report, we perceive that the plaintiff’s account commenced in 1829, and continued through successive years to September 1845. The store and blacksmithing account closed in December, 1838. The addition of the charges, and payment of the post office account, con
In relation to the two last items of credit, for plow points and castings, under date of May, 1845, the auditor has found that the date should be May 12th, 1844. This is more than six years before the commencement of this suit, and, therefore, these charges can have no effect in removing the statute bar; we can give no effect to the item of credit for a note given up, as the auditor has stated no facts in relation to it; whether that credit was made by their mutual consent, and with the understanding that it was to be a part of their account, and to be adjusted in the final balance, is not stated; and it will have no effect to remove the statute bar, unless those facts are affirmatively found and stated in the report; and besides, it does not appear that any claim of that kind was made before the auditor; but on the contrary, the report shows, that the only question there made was, whether the post office account, and the payment of the same, would prevent the operation of the statute. The fact in relation to that item is not sufficient, as an acknowledgment of an open and unsettled account.
The ease is then brought to the general question, whether the bringing forward the post office account, and payments made thereon, will have the effect to remove the statute bar on the whole account ? It is to be observed, that independent of the post office account, all the dealings between the parties closed on the 27th of December, 1838, leaving about twelve years intervening between the close of the account, and the commencement of the suit. If the statute bar is removed, it is only therefore, by bringing forward the credits or payments made on that account. If those payments were made on the plaintiff’s account generally, it would be such an acknowledgment, as would revive the whole account.—
By the later English authorities, in order to remove the statute bar, the mere fact of part payment is not of itself conclusive; the payment must have been made as part payment of a greater debt, and under circumstances that will warrant the jury in finding a promise to pay the remainder of the debt. Wainman v. Kynman, 1 Excheq. R. 118. Tippets v. Heam, 1 C. M. & R. 252. Waugh v. Cope, 6 M. & W. 828. It is unnecessary now, to say whether the rule, to that extent, would be adopted in this state; but we entertain a clear conviction, that payment of specific items of charge, unaccompanied by any circumstances showing a recognition of any other account, will not be sufficient to remove the operation of the statute. The payment, at least, must have been made on the general account, and with a view to affect the general balance, thereby acknowledging the existence of an open, running account, which is to be the subject of future adjustment. The payments, in this case, having been made under a specific application to the post office account, without any circumstances showing a recognition of any other dealing between them, or of an open and subsisting account, we think they are not sufficient to prevent the statute from barring the claims.
The judgment of the County Court must be affirmed.