113 Pa. 402 | Pa. | 1886
delivered the opinion of the Court,
“All actions upon account, and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants,” shall be commenced or sued within six years next after the cause of such action or suit, and not after. This limitation in the statute of 1713 is in identical phrase with the statute of 21 James I., c. 16, upon the same subject, and had the Courts construed it in accord with the legislative will as expressed, there would have been no difficulty in tinderstanding it in the same way as it was finally understood in England when it was settled that a transaction will not constitute an account, within the meaning of the exception, unless it is such that it would sustain an action of account, or an action on the case for not accounting: Inglis v. Haigh, 8 M. & W., 769 ; Cottam v. Partridge, 4 Scott N. R., 819.
In commenting upon the Statute of Maine, the exception being in the same words, Chief Justice Marshall remarked: “ It may reasonably be conceived that the legislature had in contemplation to except those actions only for which account would lie. Be this as it may, the words certainly require that the action should be founded on account. The account must-be one which concerns the trade of merchandise. It is notan exemption attached to the merchant merely as a personal privilege, but an exemption which is conferred on the business as well as on the persons between whom that business is carried on. The account must concern the trade of merchandise; and this trade must be not an ordinary traffic between a mer
While the decisions of this Court upon the^statute are to be followed, it is well to keep the statute itself in view, not only for better understanding of judicial expression, but for guidance on points not yet adjudicated.
Among the cases relied on by the plaintiff to sustain the ruling of the Court below, is Van Swearingen v. Harris, 1 W. & S.. 856, where the entire opinion touching the interpretation of the statute is as follows: “ Where there are mutual demands, if any item of such account be within six years before the commencement of the suit, such item is deemed equivalent to a subsequent promise reviving the debt......It takes the case out of the statute, and it is immaterial whether the parties are merchants or not, as it goes on the ground of implied promise.” The latest case cited by him, Adams v. Carroll, 85 Pa. St., 209, rules “ that to constitute mutual accounts there must be mutual demands. And the exception to the statute has no application where the demand is altogether on one side, although payments on account have been made. He also refers to Chambers v. Marks, 25 Id., 296, which reiterates that where there have been mutual accounts between two persons within six years, the statute does not apply to any part of either account; and it is added that a credit to have the effect of taking an account out of the operation of the statute must be proved to have been intended as a payment on the account.
It is manifest that the word demand in the eases cited is used in the sense of “ account.” It was never meant that when there was an account on one side that a demand on the other, founded on note, bond, record, or the like, constituted mutual accounts between the parties within the exception. In Lowber v. Smith, 7 Pa. St., 381, the subject of the exception is defined thus : “ A mutual account is when each has a demand or right of action against the other, as, for example, when A. and B. dealing together, A. sells B. an article of furniture, or any other commodity, and afterwards B. sells A. property of the same or a different description; this constitutes a reciprocal demand, because A. and B. have a demand or right of°action against each other. But this is not so when the sale is only by one to the other, whether it is to be paid for in cash or in kind; the manner of payment can surely make no difference. Nor will an overt payment alter this result.” As defined, the account on each side relates to trade
The plaintiff’s account consists of more than two score of items, beginning November 21st, 1867, and ending June 18th, 1879. There is no proof that during all that time the defendant sold and delivered anything to the'plaintiff, which is the subject of account as the word is used in the statute. There is testimony tending to show that the defendant performed professional services, as attorney at law, for the decedent in bis lifetime, the value of which he claims as a set-off. These services were rendered in suits at law, begun in 1877, and the Court below assumed that the relation of attorney and client ceased on January 12th, 1880. If this was so, the defendant’s right of action for the value of the services accrued on that date : Foster v. Jack, 4 Watts, 384; Lichty v. Hugus, 55 Pa. St., 434. Is such a demand an account that concerns the trade of merchandise ? No decision of this Court compels us to say so, and in the teeth of the statute to declare that it takes the plaintiff’s account out of its operation. The plaintiff’s demand is for a particular service which no more constitutes an account than would a demand for loaned money. If not sued, or pleaded as a set-off. within six years from the time it became due, the statute would bar recovery. It had no effect upon the running of the statute against the plaintiff’s account. Mutual demands, or debts, do not extinguish each other. Nor does either prevent the statute running against the other, unless both are such accounts as bring the case within the exception.
We discover no evidence to justify the Court in instructing the jury that the defendant’s services closed and he had a right of action on the 12th of January, 1880. But this is of little moment. The grave error was in instructing the jury that the case came within the exception in the Statute of Limitations. The second, third, fourth and fifth specifications of error are sustained.
The extracts from the charge set out in the first assignment were more likely to prejudice the jury against the defendant when read with the context than if read by themselves. The portion of the charge where these extracts occurred was well calculated to lead the jury to consider the Court’s opinion of the defendant’s conduct, that it was unfair, unjust, dishonest and highly reprehensible, and that Courts will not encourage any such conduct. Moreover, the jury must have understood
There was no error in the admission of the copy of the account which was filed with the declaration, as provided by the rule of Court.
Judgment reversed and venire facias do novo awarded.
