Shepard v. Bank of Missouri

| Mo. | Oct 15, 1851

JRyl.inb, J.,

delivered the ©pinion of the court.

Upon tiie above statement of facts, the petitioner below, appellant in this court, assigned for error-the act of the court below, in referring tiie case to a referee, and the refusal to set aside the order making the reference; also, the act-of the court in overruling petitioner’s exceptions to (the report of the referee^and in affirming the report and .giving judgement thereon for petitioner for $13 50; and aiso the act of tiie court jn giving judgment withont-a jury.

This was a proceeding under tiie new code of practice. Tiie 16th article of the code provides for the appointment of referees. By this article, it is permitted, that all or any issues of law-or fact, may be ¡referreed upon the.written consent of the parties. The court, where the parties do not consent, may, upon the application of either party, or of its own motion, direct a reference, in cases where an issue of fact shall require the examination of a long account on either side, or where the taking an account shall be necessary for the information of the court. The court can appoint one or more referees, where the parties themselves, do not agree upon the persons.

The court can appoint a general or special commissioner, to whom, matters mentioned in this article, may be referred, when the parties de not agree upon referees; wiao shall have the powers and proceed as commissioners in chancery are required to proceed, and with the effect.

We are inclined to the opinion, that the case before us, was one in which tbe co-urt might well appoint a referee of its own motion. Here was a long account to be examined; sums of money had been deposited and withdrawn in smaller sums for several years. The items of these transactions were to be looked into, and a good and competent accountantj’conversant in such matters, was better calculated to ascertain the true position of the affairs between the parties, than any jury ordinarily chosen by the ministerial officers of our courts.

The petition claims, that there is no account to be settled, but a single issue of payment to be proved. This payment, however, is- founded on a long list of items, extending through several years, and requires as much care and knowledge of keeping and making entries in books1* as is necessary in keeping accounts between merchants and others.

Nor do we consider the statute, thus authorizing the court to appoint referees, unconstitutional, as trenching upon the trial by jury. It has even been the practice of the courts, in somewhat kindred cases, to appoint auditors or referee's, to settle accounts; nor has the power ever been seriously disputed before. Without going into a labored defence of this power of the court, under the present statute, to appoint referees* in cases like the one before us, we will state it as our opinion, that this power is vested in our courts, and that it is not inconsistent with the provisions of our constitution, in trenching upon the right of trial by jury. Its practice often tends to the elucidation of accounts and transactions between man and man, and mainly contributes to the ends of truth and justice. We are not willing, therefore, to put a stop to its exercise, by throwing out doubts of its constitutionality. This settles the case, so far as regards the errors in respect to referees and trial by jury. We rule these points against the petitioner.

Nor do we feel disposed to disturb the case in respect to the exceptions taken to the report of the referees, and to the giving of judgment on the same, for the amount therein mentioned, to the petitioner. We do not say, that there may not be some errors in the proceedings of the referee, but, in our opinion, they do not touch the merits of the controversy, so a3 to injure, materially, either the petitioner or the defendant. “1 he supreme court shall not reverse any judgment of the circuit court, unless it shall believe, that error was committed, by the circuit court, against the appellant, and materially affecting the merits of the action.” Art. XIX, § 17, Prac. Code 1848-9.

This case presents to us this feature: Here, a depositor of a large amount in hank, has been in the habit of drawing on the fund, in various ways, for several years; has his bank-book, in which the accounts have been kept, shewing the debts and credits. This book was balanced on the 1st of April 1842, and again on the 1st of August 1846. In this bank book, in which the accounts have been kept, and the entries made by a bank clerk, in the following memorandum: “All the checks from 1st April 1842, to 1st August 1846, are taken from the individual ledgers of the bank — the original checks misplaced — the amounts, date, &c., are correct, having compared with the books.” This was in August 1846. The petitioner keeps this book, without making any objection, at the time, and without making any objection until years have elapsed, so far as appears from the record, when in September, 1849, he brings suit.

The law is well settled, in similar matters, between merchant and merchant. An account handed or sent to a merchant, who keeps it, without any objection being made for a long time, is presumed to be correct. Some judges say, this is conclusive, after two years have elapsed; others hold, that the objections must be made within two or three returns of the post.

It is true, these cases are between merchant and merchant, and are generally found in. chancery proceedings; but there is no reason why the same doctrine should not prevail between any other persons, with whom are accounts current or accounts of transactions in the ordinary-course of business. There is a presumption of correctness, of fairness and of truth in the account thus kept, which becomes strong and forcible, after the acquiescence of the party charged with it, for months or years. The same reasons, which adopt this rule among merchants, will apply it ta banks and their depositors. The same rules of evidence have heretofore prevailed in courts, both of law and equity. We now have no courts of equity, nor any equity proceedings, as formerly practiced; all the distinctions between the proceedings of these courts, have been destroyed, under the force of innovation. This action admits of all defences; the rules of evidence, therefore, apply in this ease, so as to make that a defence here, which formerly was considered one inequity.

“Where one merchant sends an account current to another, residing in a different country, between whom there are mutual dealings, and lie keeps that account two years, without making any objections, it shall be deemed a stated account, and his silence and acquiescence shall bind him; at least, so far as to cast the onus probandi on him:” Freeland vs. Harón and others,? Cranch, 151.

“A cash account, shown to a defendant, and not objected to by him, is sufficient evidence of his admission to go to the jury:” 1 Serg. & Rawle 406.

“Amongst merchants, it is looked upon as an allowance of an account current, if the merchant, that receives it, does not object to it in a second or third post:” Sherman vs. Sherman, 2 Vern 276.

It is the keeping of the account, by the person to whom it is sent, any length of time without making objections, which shall bind him and prevent his entering into an open account afterwards: Lord Hardwick, in Willis vs. Jernegan. In this same case, the Lord Chancellor said: ciNow there is no doubt, if vouchers are delivered up at the time, it is an affirmation, at least, that the account between the parties was a stated one, but to make it so, it is not absolutely necessary that they should be delivered up at the time the account is settled; for instance, in the case of bankers and their customers, it is seldom done, but the drafts, which are made on them are constantly kept in files, and at different times when they settle accounts with yon, they enter in a book, which they give you for that purpose, the several receipts and payments during your transactions with their shops, and it would be imprudent in them to do otherwise; because, the vouchers are very often of use to them in clearing up any disputes between their shops and a third person:” 2 Atkins. 251. See also Tickel vs. Short, 2 Vesey Sen., 239. See 2 Walking. C. C. Rep., 390. In this case accounts that had been rendered by Barker & Annesley to the defendants and returned by them without objection, are, it appears, proper to be offered in evidence, as well, and rather better than if Barker and Annesley had, in the presence of the defendants, declared the partnership: the partnership of Barker & Annesley being the point in issue.

Applying this rule, which we think founded in common sense, and is in accordance with the common course of human experience, to the case now at bar, and we come to the conclusion, that the petitioner has no cause of just complaint against the judgment of the court below.

There the petitioner is a customer of the bank, in the language of Lord Hardwicke. He has made his deposits; he draws, at various times for various amount'-’. This course of things continues for years. On, the 1st of April, 1842, this account between the petitioner and the hank is closed, or balanced: the same course of procedure still ensues until August, 1846; the accounts are again balanced; the bank book given to the petitioner is kept by a clerk of the bank; he enters the deposits, to the credit of the petitioner; he enters the checks, notes, &c., of the petitioner, in the same hook, to the credit of the bank; these are closed in August, 1846; a memorandum made of the fact, of the correctness of the account; the examination of the books of the bank; the account handed thus to the petitioner remains without objection, as we find in the record, for nearly three years; then suit is brought, and objection made to paving the accounts between the parties referred to one competent man as referee, but a jury is preferred! I am free to say, that, no case has ever been presented for my examination, where the above rule of accounts, adopted and practiced by the rules of chancery courts, both of England and of the States of this Union, as most conducive to the promotion of equity and substantial justice in the settlement of accounts between merchant and merchant, can be with more propriety invoked than in the case now at bar.

We therefore affirm the judgment of the court below,

the other judges concurring.