6 Me. 307 | Me. | 1830
In this case three different questions are presented to the court for decision.
1. The first is a motion on the part of the plaintiff, for leave to amend, by inserting an ad damnum; through inattention none having been laid in the original writ.
2. The second is a motion at common law, for a new trial; ort the ground that one of the jurors who tried the cause was incompetent, for certain reasons stated in the motion on file.
3. The third is a motion for a new trial, founded on exceptions to the opinions and instructions of the judge who presided at the trial of the cause. A verdict was returned for the plaintiff for the sum of $2031,96.
We shall proceed to examine these several motions in the order in which we have arranged them.
It is a principle of law established by several decided cases, that if judgment be rendered for a sum larger than the amount of the ad damnum, it is, for that reason reversible on a writ of error ; and it must be reversed, unless the plaintiff will enter a remittitur of the excess. If this be done, the court will affirm the judgment for the residue. Hutchinson v. Crossen, 10 Mass. 251; Grosvenor v. Danforth, 16 Mass. 74. In the present case, the counsel for the plaintiff. after the verdict was returned, discovered that no ad damnum was laid $ and' anticipating the danger to which his client would be exposed by taking judgment on the verdict, in case the defendant’s motions should be overruled, he very prudently made the motion to amend. The 16th section of our revised statute, ch. 59, has respect only Jo circumstantial errors or mistakes ; and it would seem that, inasmuch as a judgment is liable to reversal, if rendered for a larger sum than the ad damnun alleged, the total omission, or the smallness of an ad damnum, cannot properly be considered as merely a circumstantial error or mistake ; at least after rendition of judgment. Perhaps until judgment is rendered, it may be so considered. We are not aware of any decisions opposing tliis idea. Matters of sub
We therefore pass to the consideration of the third question, or motion founded on the exceptions. The exceptions alleged are numerous, and have respect to almost all the proof introduced, and all the decisions and instructions of the presiding judge ; and, of course, the opinion of the court may be extendedlo an unusual length in the examina-nation of this branch of the cause. Several of the exceptions, however, and the subjects with which they are connected, may be embraced in one view ; because one general answer may apply to them, and the same principles govern our decision in respect to them. But hr this examination we shall arrange the exceptions, so as in the first-instance to dispose of the minor questions, and then proceed to a distinct and full consideration of the more important.
The exception against the admission of the day book of the intestate is entirely destitute of legal foundation. It was admitted under such instructions and restrictions as are usual in similar cases; the principles regulating this species of proof are very familiar, and the citation of authorities is unnecessary. The exception to the admission of those' charges in the leger entered in the hand writing of Dunn, as evidence to the jury, we consider as equally unsupported; they were admissions on the part of Dunn, and, as such, competent proof, upon the plainest principles of law..
As to the charge for cash paid to John Waüe, we cannot pronounce the instructions of the judge to be incorrect, in the peculiar circumstances of the case. 'The evidence, such as it was, was left to the jury for .their consideration. They were informed that the book alone was not legal proof of the charge, but was admissible, and might be considered in connexion with the other proof. John Waite had for many years been dead; the receipt on the back of the note given by Dunn, was in John Waite’s writing, and the note was produced on trial, by the plaintiff, in whose possession we should expect to find it after it was paid by the intestate. The numerous instances of small sums charged by him as paid for Dunn, and proved
The admission of the paper book, containing sundry accounts in the hand writing of Dunn, as mentioned in the exception, was perfectly correct. The statements therein made were confessions of Dunn deliberately made ; and, being legally in evidence, it was the province of the jury to examine it, and draw their own conclusions from its contents ; and with respect to the supposed loss of some of its leaves, either by accident or design, and the inferences to be drawn from its appearance, they were all subjects exclusively within the province of the jury; and the instructions of the judge to that effect were in our opinion correct and proper. A similar answer may be given to the exception alleged against the direction of the judge touching the statement of the account of October 1799, and that appearing on the account annexed to the writ. The questiou was, whether it was a statement or adjustment made by both parties, that is, by Waite and Dunn ; or only a statement by the intestate only, or some person employed in drawing off the account. This was a subject also to be examined and decided by the jury ; and it was very properly submitted to their determination.
The next exception relates to the instruction of the judge as to the note given by the intestate to the assignees of Pierson Sf Thatcher. The jury have decided that the charge originally made against Dunn, was transferred and made against Waite by the consent of Dunn ; and that afterwards Waite gave the note in question; and that the assignees received it in full satisfaction of the debt due originally from Dunn, and afterwards, by transfer of the charge, due from Waite. It has been urged in the argument that there was no sufficient or satisfactory proof that the transfer of the charge and the assumption of the debt by Waite were authorised by any request on the part of Dunn. On this head all the evidence is not particularly detailed in the exception ; but if it had been, we are not inquiring whether the verdict in this particular is against evidence or the weight of evidence. There is no motion before us for a now trial on such
The next objection in the order in which we have arranged them
We now proceed, in the last place, to the consideration of the questions arising on the exception to the judge’s instruction relative to the defence upon the plea in bar, and the construction of that part of the statute of limitations which was presented by the issue.
Though the pleadings are protracted to a surrejoinder before an issue to the country is formed ; yet the simple and single question put in issue is whether “ all accounts, concerns and transactions between the plaintiff’s intestate and the defendant’s testator were liquidated and closed at the time of, and for more than six years before, the commencement of the plaintiff’s action.” This fact the defendant in his rejoinder affirms, and the plaintiff in his surrejoinder denies, and issue is taken on the traverse.
This part of the cause demands and has received our particular attention, and been subjected to a patient investigation. By a review of the numerous cases to be found in our law books upon the subject, we perceive that the exception in the. statute as to merchants* accounts has created doubts and been the cause of a series of contradictory decisions by able judges, both in England and in this country, in courts of chancery and courts of law; and the learned
The language of the exception in the statute of limitations of 21 Jac. I, cap. 16, and of our statute on the subject is this, viz. “ other than such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants.” Whatever the “ accounts” are which were intended to be described in the above exception, they are in express terms excluded from the operation of the restraining clause ; and as effectually as if they had been contained in a proviso at the end of the section, declaring that as to such accounts the statute should have no operation or effect whatever. Hence the first inquiry is, what we are to understand by the above mentioned descriptive word “ accounts.” We apprehend there is no difficulty in giving a satisfactory answer to this question. It has been correctly answered by a course of decisions. By that word are intended open or current accounts, as distinguished from
I. Whether the death of both or either of the original parties, Waite and Dunn, has operated so as to subject the accounts to the limitations of the statute.
II. Whether the cessation of dealings and termination of charges, more than six years before the commencement of this action, has produced the above effect on the accounts.
III. Whether the foregoing questions, are, or either of them is, open to examination by the defendant, upon the special issue joined by the parties.
As to the first question. Independently of all authority, it seems to the court to be a difficult task, by any reasoning from analogy, to establish the principle that the death of one of two merchants, who for years have been dealing together, should, in legal contemplation, have the same effect upon their mutual accounts as a liquidation and adjustment of them. An adjustment implies the operation and as
The second inquiry is whether a cessation of dealings is equivalent and amounts to a liquidation and closing of the accounts, and that
We will now proceed to a brief examination of the principal cases on the subject; commencing with those which have been considered as supporting the defence upon the point now in question. Most of these have been collected by Chancellor Kent in Coster & al. v. Murray, 5 Johns. Ch. 522, as well as by Bállantine and Angelí. The collection by Mr. Angelí, being the most recent, is the most full and satisfactory. The first case we notice is Webber v. Tivill before cited, which was assumpsit; one count being for monies had and received and goods sold, and another on an insimul computassent; plea, the statute of limitations ; replication, merchants’ accounts; and demurrer. The court gave judgment for the defendant; but it was expressly stated to have been given on the ground that the parties had stated the account and agreed on the balance. It was not an open account. No one doubts the correctness of this decision. The case of Bridges v. Mitchell, Gilb. Eq. R. 224, merely states the undisputed principle, that the exception in the statute applies only to open accounts. The case of Welford v. Liddel, 2 Ves. 400, was a bill for an account, and the statute was pleaded; but it does not appear to have been an account between merchant and merchant. The plea was allowed. Lord Hardwiche, in giving his opinion, recognizes the distinction between running accounts, and accounts closed and concluded, and the application of the statute to those of the latter
We will now proceed to the examination of those authorities which have established or recognized a different construction of the exception in the statute relating to merchants’ accounts, and on which the counsel for the plaintiff place their reliance.
The first is the case of Sandys v. Blodwell, which has been twice cited before. Tho facts of the case we shall not repeat, but merely state that the justices certified that an open and unsettled account between two merchants was not barred by the statute, though more than six years old when the action was brought. The next is the decision-of Lord Hardwiche in 1737, referred to by Lord Eldon in Foster v. Hodgson, 19 Ves. 180. The next is the before cited case of Cat-ling Ex’r. v. Shoulding, in which Lord Kenyon states the principle to be that “ where there is no item of account at all within six years, the plaintiff, to the plea of the statute, must reply specially, as was done in Webber v. Tivill, in order to bring his case within the exception. In that case the plaintiff replied that “ the accounts wholly concerned the trade of merchandize.”
The next is the case of Foster v. Hodgson, above cited, in which Lord Eldon considers the question as still open and unsettled in England, notwithstanding the several decisions which we have mentioned, as well as some others ; but as the bill did not expressly state the accounts then before him, to be accounts between merchant and merchant, his lordship did not undertake to decide this long contes
The principle contended for by the plaintiff seems to have been conceded to be correct in the case of Godfrey v. Saunders, 3 Wils. 94. The defendant’s second plea was that there was not any open áecount between the plaintiff and defendant, at any time within six years before the commencement of the action. The plaintiff replied to this plea that the account concerned trade and merchandize, which was never adjusted or settled between them. The defendant rejoined that the account did not concern trade and merchandize, and thereupon issue was joined to the country. Now why did not the counsel for the defendant demur to the replication, if accounts between merchants, though open and unadjusted, are barred by the statute of limitations ?
The next case is that of Stiles plaintiff in error v. Donaldson, 2 Dal. 264. In an action on bond, the defendant filed in offset an account between the plaintiff and himself as merchants, and concerning the trade of merchandize. The account had remained unliqui-dated and unsettled for seventeen years. The plaintiff contended that it was barred by the statute of limitations, by such long delay and acquiescence. The court decided that the account was not affected by the limitations of the act, and affirmed the judgment below.
We next proceed to the case of Mandeville & Jameson, plaintiffs in error, v. Wilson, 5 Cranch 15. This was an action of assumpsit for goods sold and delivered; pleas, the general issue, and statute of limitations ; replication to the latter plea, that the money “ became due and payable on an account current of trade and merchandize had between the said plaintiff and defendants as merchants, and wholly concerned the trade of merchandize.” The defendants rejoined that “in January 1799 the partnership between Mandeville and Jameson was dissolved, and all accounts between them ceased ; and that since that time no accounts have existed or been continued between the plaintiff and the defendants.” The plaintiff surrejoined that the goods were sold and delivered before January 1799 j de
In commenting on the case of Union Bank v. Knapp, cited by the defendant’s counsel, we noticed that it had been overruled by the same court. Since the trial of this cause, the case of Bass, ez’r. ¶. Bass, has been published in 6 Pick. 362, in which it was explicitly decided that merchants’ accounts, as described in the statute o)f
From the foregoing review of the decisions on the questions immediately before us, we cannot persuade ourselves that the weight of authority is in favor of the construction for which the counsel for the defendant have so ably, anxiously and strenuously contended ; especially when we consider that in the last English decision which’ we have seen, Lord Eldon expressed his opinion that the question was then open and unsettled in that country; and considering also that where the courts in our own country have professed to decide it, (with the exception of the court of appeals in South Carolina, which inclined strongly the other way) the decision has been unequivocally against such a construction ; and one of those courts is the supreme tribunal of the nation ; one peculiarly entitled to the highest consideration and respect of all other courts of law. It may be proper to observe that the learned Chancellor Kent, in his review of the'cases on the subject in Coster & al. v. Murray, (in which he expresses his own opinion,) has omitted the cases we have cited from Wilson, Dallas, and Crunch.
We have now done with the citation of authorities, and shall conclude with some general observations respecting the statute of limitations, and the construction that has been given to the different parts of it, and the changes of opinion which have taken place at different periods in regard to it. In the early part.of this opinion we alluded to this subject. In the beforementioned case of Martin v. Heathcote, Lord Northington decided that “ merchants’ accounts, after •‘sk-years discontinuance of dealing, were as much within the statute as any other accounts and in Barber v. Barber, Sir William Grant adopted and proceeded upon the same principle. In both these-cases the distinction between merchants’ accounts and others is abolished. With all due respect, we must say that this doctrine, if admitted, virtually amounts to a complete judicial repeal of the exception in the statute, and is in direct opposition to its declared intention, and to the unequivocal language in which the intention is
In respect to the restraining part of the statute, this has already been done. By a series of decisions, in England and in this country, former errors have been corrected ; and it is now perfectly settled that nothing short of an unqualified, unambiguous and explicit acknowledgement of an existing debt, by words or acts, will take a case out of the limitations of the statute ; and to preserve consistency in the application of principles., it is, in our humble judgment, proper to go back to the plain language of the exception, and rest contented with giving to it its legitimate operation. Under the influence of these impressions, and guided by the authorities and reasoning which we have presented to view in the investigation of this cause, we have been conducted to the conclusion, that the accounts between Waite and Dunn cannot, on legal principles, be considered as barred by the limitations of the act, by reason of the cessation of dealings between them more than six years before the commencement of the present action; nor by the death of one or both of them, as mentioned in the pleadings. In the state of the facts, and in our application of legal principles to those facts, it is of no importance to decide on whom the burden of proof was imposed by the form of the issue. The affirmative, however, seems to be on the part of the defendant. This leads us to the last point to be considered.
This third point, namely, whether the general question which we have been so long examining under the two former heads is open to examination on the special issue joined, has become of minor importance, in consequence of our decision of those questions, in the manner aboye stated ; because, if we were dissatisfied with the instructions given'to the jury, as to the effect of the special form of the issue, as being exclusive of the general question, still it would be no ground for setting aside the verdict, when the legal principle aiid legal result would be the same under any form of the issue. But we do not perceive any incorrectness in the instructions given on the point. The question on the pleadings was whether the accounts had been liquidated and closed more than six years before the commence-pient of the action. And, as the judge observed, it was the duty of
The great degree of interest which this cause, in all its stages, has excited on the part of those immediately engaged in it, and the unusual length of the argument of the defendant’s counsel, as well as the number of questions made on the exceptions and in the ample discussion of all the merits disclosed to us, have led the court to a full examination of the whole subject in all its bearings ; and after a long and wearisome investigation of facts and authorities, and careful attention to the arguments of counsel, we are all of opinion that the defendant has not succeeded in sustaining either of his motions: and the consequence is that there must be
Judgment on the verdict.
See Dole v. Hayden. 1 Greenl. 152.