32 S.E. 378 | N.C. | 1899
This action was like the old one of assumpsit for goods and wares sold and delivered by the plaintiff to the defendant. The answer sets up for defense a counterclaim for goods and wares sold to the plaintiff. In the replication the plaintiff pleads the statute of limitations to the counterclaim. The issue joined on the statute of limitations is the only matter before this Court. In the judgment below for the defendant the account between the parties was referred to Thos. N. Hill, Esq., for investigation and report. In the trial the plaintiff and defendant were both examined as witnesses, each for himself, but we think it unnecessary to recite the evidence, for in our view of the case, whether or not the statute of limitations avails, the plaintiff depends upon the plain language and proper construction of a receipt which he gave to the defendant long after this action was commenced and the complaint and answer filed. The receipt is as follows: *74
JACKSON, N.C. 2 April, 1898.
Received of George P. Burgwyn the sum of $15, which, when the accounts between us and now unsettled are examined and correct balance found, if said Burgwyn is indebted to me, said sum is to go as a (71) credit on such sum as may be found to be due me, and if not indebted to me, the said sum of $15 is to be refunded by me to said Burgwyn, with interest from date.
M. F. STANCELL.
That receipt was in evidence and the court instructed the jury that if they believed the evidence they should answer the issue as to whether the defendant's claim was barred by the statute "No."
We think there was no error in the instruction. The receipt clearly recognized that there subsisted between the plaintiff and defendant transactions which were not disjointed and disconnected, but mutual ones. It recognized the fact that there had to be an adjustment between them as to these accounts against each other. The principle of mutuality of accounts is founded on the assent of the parties that the accounts shall be continuing and mutual. It is not, however, necessary that this assent must be the result of a direct agreement to that effect; it may be inferred.
NO ERROR.
Cited: Alley v. Rogers,
(72)