| Conn. | Feb 15, 1861
The account which the defendant proposed to set-off against the plaintiff’s demand being of more than six years standing, the plaintiff insisted upon the statute of limitations as a bar to such set-off. And in order to remove the bar, the defendant proved that, on the 20th of December, 1852, (less than six years before the plaintiff’s demand accrued, but more than six years before the commencement of this suit,) a settlement was had, and a balance found and agreed to be due from the plaintiff to the defendant on book, which balance was then re-charged to the plaintiff on the defendant’s book; and that afterwards, upon the trial of this cause before the justice, the plaintiff expressly admitted that balance to have been due on the 20th of December, 1852, that it was a just debt, and that it was still unpaid for anything he knew; and upon the trial of the cause in the superior court, the plaintiff, upon his cross-examination, made substantially the same admissions. These admissions, it is to be observed, were in both instances made in the progress of the trial, when the plaintiff was insisting upon the statute of limitations as a protection against the proposed set-off, and when, as the superior court expressly finds, the plaintiff did not intend, and was not understood to intend, to relinquish that protection.
Now it is true, that ordinarily an acknowledgment that the debt claimed was once justly due and that it has never been paid, fairly implies, and from it the triers will be authorized to find, a new promise made at the time of such acknowledgment, to
The superior court decided right, also, upon the other point in the case. Where there is an open account between two parties, all advancements made by one of them to the other, may, (in the absence of any express or implied agreement to the contrary,) be entered in such account, become constituent parts of the account, and be applied upon, or in payment of, the oldest item in the account on the other side; so that in an action of book debt he only is entitled to recover in whose favor the final balance upon the whole account is found; because, in the case supposed, the party making the advancement impliedly recognizes the existence of an unadjusted account, and assents to the application of his advancement thereon, as one of the elements from which the final balance is to be ascertained. But in the case at bar the plaintiff’s labor was not performed in payment of any debt, nor was it intended to go into any existing account, but by the express agreement of the parties it was to be paid for in money, and
In a matter of account, every proper item of credit on one side is presumed to be intended, and will therefore operate, as a payment upon existing debits on the other. The account is an entirety. The items of debt and credit are the elements of which that entirety is composed. Credits on one side are applied to the extinguishment of debits on the other, as payments intentionally made thereon, and not as the set-off of one independent debt against another. '
The respective claims of these parties were entirely independent of each other. The money due to the plaintiff by the contract was not a proper credit on the defendant’s book, and could not be rightfully applied as a payment upon the defendant’s debt, because it was otherwise expressly agreed between the parties before the plaintiff’s demand accrued.
The defendant had no right, in the face of this agreement, to credit and thus apply the plaintiff’s labor upon his own account, whether that account was then outlawed or not. And although it might have been inferred from the plaintiff’s entry of his labor on his own book, that he intended it should go into and form part of a mutual account between him and the defendant, the finding of an express agreement to the contrary conclusively repelled such inference.
We do not advise a new trial.
In this opinion the other judges concurred.
New trial not advised.