68 So. 526 | Ala. Ct. App. | 1915
Our statute of limitations provides that all actions for tbe recovery of money upon a loan or upon a stated or liquidated account must be brought within six years, but that all actions for tbe recovery of money due by open or unliquidated account must be brought within three years from tbe date of the last item of tbe account, or from tbe time when, by contract or usage, tbe account is due. — Code, §§ 4832, 4835 (subd. 5), 4838. ' ■
When there are mutual accounts, tbe time must be computed from tbe date of tbe last item, unless tbe account is liquidated and a balance struck. — Code, § 4849.
Tbe suit here was by tbe appellees, plaintiffs below, against appellant on tbe common counts for money due by account and by account stated and for money loaned. Tbe defendant pleaded tbe general issue as to each count and tbe statute of limitations' as to the count for money due by account. At the conclusion of tbe evidence, tbe court gave tbe general affirmative charge for plaintiffs, in which action we are of opinion tbe court
The transactions between the parties, out of which arose the indebtedness here sued for, appear without conflict in the evidence to have been as follows: On September 14, 1908, they entered into a written contract whereby the defendant agreed to sell lumber for the plaintiffs on a commission basis. He was to defray all of his expenses in doing so, was to stand one-half the losses sustained on bad debts for all lumber sold by him, and was to receive as compensation for his services one-half of the net profits realized by plaintiffs on all lumber so sold by defendant, after first deducting from his half of such profits one-half of the loss on bad debts— the plaintiffs reserving the right to reject any and all orders sent in by defendant. During the time that this contract was in operation and effect, the plaintiffs advanced to the defendant as a loan, for the purpose of enabling him to pay his expenses in traveling and selling lumber under the contract, divers sums' of money on divers dates between September 8, 1908, and November 8, 1908, charging each item, when so advanced, on their account against defendant, and crediting him all along on such account with his half of the net profits realized by plaintiffs on each sale of lumber as and when made by defendant, after deducting, in the way as aforesaid, losses for bad debts. The last charge for money advanced was on November 8, 1908, and the last credit for commissions on lumber sold was December 16, 1908, when,
We cannot so agree. Tbe statute has reference to a simple loan of money (19 Am. & Eng. Ency. Law [2d Ed.] 207), and not to money loaned or advanced, as here, on and under an open and mutual account between tbe parties, tbe balance due on wbicb becomes barred within three years, as seen, from tbe date of tbe last item, unless tbe account has become a stated account Goodwin v. Harrison, 6 Ala. 438; Bradford v. Spyker’s Adm’r, 32 Ala. 143; Ware v. Manning, 86 Ala. 244, 5 South. 682; Loventhal v. Morris, 103 Ala. 335, 15 South. 672; 4. Mayf. Dig. 95, § 28).
“When there are mutual accounts between two persons it is always tbe understanding that tbe account upon one side shall offset that upon tbe other, and in law tbe debt due from tbe one to tbe other is only the! balance after tbe application in reduction of tbe accounts on tbe opposite side. Until a balance is struck,
The court erred, as said, in giving the affirmative charge for plaintiffs.
There is no merit, however, in the other contention of defendant, to the effect that he was entitled to credit on the account sued on for his part of the profits on 16 car loads of lumber sold by him, which were not credited on the account, and which if credited, would have left a small balance due him, instead of a large balance due the plaintiffs, on the account. He testified, it is true, Avithout dispute, that he sold 16 cars of lumber in addition to those that Avere credited on the account, but his testimony nowhere shows that the orders for these cars were accepted and filled by the plaintiffs. For aught appearing to the contrary, they rejected these orders, as they had a right to do under the reservation in the contract between the parties before mentioned. If they did, the defendant would not be entitled to any credit as to them. There is nothing in the evidence to show, there
Reversed and remanded.