Miner v. Lorman, 59 Mich. 480

59 Mich. 480 | Mich. | 1886

Campbell, C. J.

Plaintiff sued defendant upon the common counts, relying on an account stated in 1881, on which some payments were then made, and upon a small sum in addition, of which there was some evidence. The evidence showed, by testimony which we think was properly admitted, that in 1871, at the close of their partnership, it was mutually agreed that the balances then appearing on the books were correct, and that defendant then promised to pay the balance due plaintiff, with interest. No payment was made until more than six years thereafter, in 1881, when the parties figured up the amount due, with interest, at $1,709.65, and on this, payments were made exceeding the original principal, leaving several hundred dollars still due.

After this case was made out, the circuit court for the county of Wayne, where the case was tried, struck out all the testimony, and directed a verdict for the defendant, and plaintiff brings error.

There cannot be any doubt of the incorrectness of this ruling, so far as' it applies to the items accruing within six years; and upon that there must necessarily be a reversal. But we are also satisfied that the court erred in striking out any of the testimony. It was done, as we are informed, under a misapprehension of the decision of this Court on a former hearing (56 Mich. 212), where it was held the account stated in 1881, and the payments on it, could not create any cause of action, because, as then appearing, no legal liability had ever existed before, and there was nothing to draw interest. The present record supplies that defect, and shows, beyond question, an agreement in 1874 which amounted to a statement of accounts. The fact that it arose out of a partnership accounting makes no difference, as there were but two partners, one of whom was recognized as owing a balance to the other: Wheeler v. Arnold, 30 Mich. 304; Bennett v. Smith, 40 Mich. 211.

The only question of importance, is, whether the new settlement of the old liability of 1874, and payment upon it in 1881, were sufficient to keep alive the old claim so as to make it a legal foundation for the statement of 1881. If it was valid, then there was no occasion for amending the particulars, inasmuch as the later account stated will support the action.

It is claimed, for the defense, that, in addition to the payments, there should be a promise in writing, also, to make further payment of the debt.

Our statute is in this respect the same as the English statute, which, as a general rule, requires new promises to be in writing. But it is expressly provided that nothing in the sections requiring a written acknowledgment or promise “shall alter, take away, or lessen the effect of a payment of any principal or interest made by any person.” It is difficult to imagine on what grounds any one can apply the rule •requiring a written promise, to a case of actual payment, when the statute says' expressly it shall not apply. Some English cases apparently favored the claim, although rather obscurely. But in Cleave v. Jones, 40 Law J. Exch. 238, S. C. 6 Exch. 573, the court of exchequer chamber declared that it was time to expressly overrule those cases, and did so. The case of Williams v. Gridley, 9 Metc. 482, had previously discussed the doctrine, and disapproved of Willis v. Newham, 3 Younge & J. 518, which was the origin of the repudiated rule. Where language is as plain as that of the statute, it is not desirable to extend discussion upon it. We think a complete cause of action was made out.

The judgment must be reversed and a new trial granted.

The other Justices concurred.