118 Mass. 486 | Mass. | 1875
We are of opinion that the ruling, asked for by the plaintiff, upon the statute of limitations, was a correct statement of the law in that respect; and that the instruction “ that the statute of limitations was not applicable to this action,” was erroneous.
An “ account stated ” has always been held to bring a merchant’s account, as well as a “ mutual and open account current,” within the operation of the statute of limitations; or rather, to take it out of the exception; so that all claim on account of previous items of the account will be barred in six years thereafter, although the balance itself may be carried forward into a new
The statute of limitations does not apply to the unsettled account of a town treasurer so long as he continues in office; because no action accrues upon the separate credits and charges of his account, or the separate items of receipt and payment. He is himself the legal custodian of the money of the town, receiving and disbursing it as a public officer. The relation is one of trust rather than that of debtor and creditor. Railroad National Bank v. Lowell, 109 Mass. 214. But when his account has been settled with the town, and the balance carried forward to the account of another year, that balance is the sum for which he is accountable as treasurer for the new term. It has been held that his new official bond, in such case, does not cover any claim that the town may have for sums belonging to his previous account, but withheld or omitted in the settlement. Rochester v. Randall, 105 Mass. 295. And it seems that an action for money had and received then accrues for the recovery of such sums. Adams v. Farnsworth, 15 Gray, 423. On the other hand, and for like reasons, after such a settlement, errors and omissions in his previous account, whereby too large a balance has been carried forward, cease to pertain to the treasurer’s current official account; and his claim against the town by reason thereof becomes a personal claim, against which the statute begins to run at the date of such settlement.
Conceding that the defendant is not concluded by the settlements from showing the errors in his previous account, the claim is nevertheless barred by the lapse of six years from the settlement of 1865, which was subsequent to the transactions relied on. Exceptions sustained.