72 Me. 34 | Me. | 1881
When parties make out what they believe to bo a correct itemized statement of their mutual dealings and the-balance is thereupon ascertained and paid, "the items” can no-longer bo considered "unsettled” within the meaning of E. S., c.. 81, § 84, although one was omitted by mistake. And if, six
The stat. 1821, c. 62, § 7, which excepts from the statute of limitations "such accounts as concern the trade of merchandise "between merchant and merchant,” is a transcript of the Massachusetts stat. of February 13, 1787, § 1, which in turn is a copy • of the stat of James i, c. 16, § 3.
The leading English case upon the subject of mutual accounts between parties other than merchants is Catling v. Skoulding, 6 T. R. 189, in which it was held that, if there be a mutual account • of any sort between the parties for any item of which credit has " been given within six years, that is evidence of acknowledg- : ment of there being such an open account current between them . and of a promise to pay the balance, so as to take the case out •of the statute. Lord C. J. Kenyon said: "Here are mutual- : items of account; and I take it to have been clearly settled, as . long as I have any memory of the courts, that every new item . and credit in an account given by one party to the other is an -admission of there being some unsettled account between them, 'the amount of which is to be afterward ascertained; and any act .which the jury may consider as an acknowledgment of its being ; an open account, is sufficient to take the case out of the statute. ' Daily experience teaches us that if this rule be now overturned, i it will lead to infinite injustice.” This case does not seem to ■ place its decision upon a construction of the statute, but rather i upon an independent ground that, the items within six years are ,- admissions of an unsettled account and is equivalent to evidence ■ of a new promise which takes the other items out of the statute.
The Massachusetts court cited and followed that decision, Cogswell v. Dolliver, 2 Mass. 217, and the court in this State •adopted the same doctrine, citing the above cases and calling it a reasonable judicial construction of the statute. Davis v. Smith, 4 Maine, 337.
In the revision of 184-1, the statute of limitations was redrafted. The clause relating to merchants’ accounts was dropped. The provision relating to accounts no longer retained the form oí an exception, but adopted the decision of the court in the terms used by the court by providing that, " in all actions brought to recover the balance due upon " mutual and open accounts current, the cause of action shall be deemed to have accrued at the time of the last item proved in such account,” c. 146, § 9. The same provision was transcribed into the revision of 1857, c. 81, § 99.
In Theobald v. Stinson, 38 Maine, 149, followed by Dyer v. Walker, 51 Maine, 104, the court held that to constitute "mutual accounts” each party must have one or more written charges against the other. Thereupon the legislature added to the section the cláuse : " And it shall be deemed a mutual and open account current, when there have been mutual dealings between the parties, the items of which are unsettled, whether kept or proved by one party or both.” Stat. 1867, c. 117.
And now, as before the amendment in 1867, when the items of the mutual dealings have been examined, the respective sums fixed and the balance agreed upon by the parties and it has been paid, there is no longer"an open account current between them, as stated by Mellen, C. J. sxipra; or, in the language of the statute, there are no longer mutual dealings between the parties, the items of which are unsettled. The settlement changed the character of the account. The items became discharged by the payment of the agreed balance which resulted from setting off against each other the counter items. The discharge of the items is a consideration to sustain a promise to pay the balance. May v. King, 12 Mod. 538; S. C. 1 Ld. Raym. 680; Callander v. Howard, 10 C. B. (70 E. C. L.) 290. And if one of the items of the account was overlooked, the settled account, after six years can afford no aid in taking it out of the statute of limitations. Union Bank v. Knapp, 3 Pick. 96, 113.
Neither does it make any difference that a new account runs on from the date of the last item in the settled account, and is begun even before the balance in the former is paid. Parties may , settle frequently or otherwise. If the items are drawn off from ■ one certain date to another, and in due time settled and paid, the running on of a new account from the latter date can have no effect upon the former one which is settled, and neither can the .settled account have any effect upon the new one. On the • contrary the settled account drops out as if it never had existed.
An application of these principles to the facts in the case at '.bar sustains the ruling.
We are also of tbe opinion that the exclusion of the several receipts offered by the plaintiffs was correct, as the money represented by them had been allowed by tbe parties upon specific bills rendered and settled.
Exceptions overruled.