Quynn v. Carroll

| Md. | Dec 15, 1856

Lb Grand, C. J.,

delivered the opinion of this court.

This action was brought by the appellant to recover of the appellees, as administrators do bonis non of Michael B. Carroll, an amount claimed as due for services alleged to have been rendered, as clerk and agent for the period of eight years and eight months, at $500 per year, commencing on the 1st day of January 1843 and ending on the 31st day of August 1851, amounting to $4333.33 principal, and $980 interest, making in all $5313.33.

The writ issued on the 14th day of October 1853. In bar of the plaintiff’s right to recover, the defendants pleaded the statute of limitations. The plaintiff gave evidence to show ho had been in the employ of Michael B. Carroll, during the time for' which he claimed compensation. To remove the bar of the statute of limitations, he offered in evidence an account on the books of the deceased, and in his hand-writing, against the plaintiff’, for merchandize sold and delivered to the plaintiff, commencing on the 14th day of September 1846 and closing on the 21st day of January 185!, amounting to the sum of $398.53, with a credit, in the hand-writing of Carroll, at the foot of the account, in these words:' “By amount of services rendered on account $393.53, M. B. Carroll." He also gave in evidence a receipt of his own, which was found after her death, among the papers of Mrs. Carroll, the executrix of M. B. Carroll. It is in these words: “1853, 'May 1 \th. Received of June M. Carroll, executrix of M. B. Carroll, three hundred and seven dollars and eighty-six cents, on account of services rendered said M. B. Carroll in his life time." There was other testimony offered, but it is not necessary it should be now noticed. Admitting, ex gratia argument, that the testimony of Miss Worthington was inadmissible, and that of Dr. McCubbin insufficient to bind both of the administrators, we are yet of opinion the court erred in giving the following instruction, to wit: “That the evidence given in this cause was insufficient, if believed by the jury, to remove the bar of the statute of limitations relied on by the defendants in this cause, and that the plaintiff was only entitled to recover for the three years, immediately preceding the day of the impetration of the writ original in this cause.”

Conceding the testimony of Miss Worthington to be out of the case, and the insufficiency of that of Dr. McCubbin, the question then is, are the entry on the books of M. B. Carroll, in his own hand-writing, and the receipt of the plaintiff found among the papers of Mrs. Carroll, executrix of M. B. Carroll, sufficient to remove the bar of the statute? The statute of limitations has ever been a fruitful source of doubt and discussion, and the decisions in regard to it, both in this Country and England, various and contradictory. This being so, Wherever it is found that the question presented in the particular • case for the time under consideration, has been settled by the adjudications of the appellate court of this State, such adjudications ought to be followed, whatever may have been the decisions elsewhere. In the case now before us, the plaintiff gave evidence of the performance of services and of their value. It was for the jury to pronounce on the credit of the witnesses who gave this evidence. In the case of Turner and Peterson, Exc'rs. of Peterson vs. Ellicott, 9 Md., 52, this court held, that in this State it is not necessary the acknowledgment or promise to remove the bar of the statute should specify any particular amount, nor need the claimant exhibit at the time, the evidence, or state the precise nature or amount of the claim, these being facts to be found by the jury according to the evidence in the case. The same doctrine was held in Guy vs. Tams, 6 Gill, 82. In the case under consideration, the only claim alluded to, is that for services alleged to have been rendered by the plaintiff to M. B. Carroll, as his clerk and agent, and it was therefore proper, under the decisions to which we have adverted, for the jury to find the acknowledgment, if any, had "reference to such claim and to none other, there being none other referred to in the testimony.

• This being so, we are to inquire what is the meaning of the entry of M. B. Carroll, and of the receipt of the plaintiff given to the executrix ?

Whilst in the case of Beltzhoover vs. Yewell, 11 Gill Johns., 212, the court held, that payments “on account” did not jver se revive the debt claimed on a running account, where the party making the payments had never been furnished with a copy, or been otherwise put in possession of a knowledge of the entries which it contained, yet it did hold, that if the debtor had full knowledge of the account, a part payment would remove the bar of the statute. The case before us differs from that of Beltzhoover vs. Yewell, in this: in the latter the débtor Beltzhoover had no knowledge of the items of charge against him, whilst in the case at bar, Carroll kept his account against the plaintiff, and settled it by a credit of services rendered by the plaintiff. If the witnesses are to be believed, he knew the plaintiff had acted as his clerk and agent, and recognized such services by the very words of the credit. In the case, however, of the receipt given to the executrix all doubt is removed. She expressly makes the payment “on account of services rendered said M. B. Carroll in his life timed'1 She admits the service and makes a payment on account of them,- what those services were and their value was a question for the jury.

In this view of the case, it is unnecessary we should inquire into the propriety of the ruling of the court, in regard to the admissibility of the testimony of Miss Worthington; or of the application of payments; or of the power of one administrator by his promise or acknowledgment to bind his co-administra-' tor. If the jury believe the services were performed, aud that the executrix acknowledged that fact, and made a payment on account of them, then the bar of the statute was removed. We’ reverse the Circuit court aud remand the case.

Judgment revei'sed and procedendo awarded.