50 Mo. App. 314 | Mo. Ct. App. | 1892
— The plaintiff brought suit against the defendant upon a promissory note made by him to
The answer admitted the execution of the note, and then alleged “that defendant had for a long time prior to the execution of said note attended to all the business of Samuel Brown, paying money for him when necessary to do so, renting his farm and looking after it for him, for which the said Samuel Brown agreed to compensate defendant thereafter; that at the date of the execution of said note the said Samuel Brown had on hands the sum of money named in said note, to-wit, the sum of $475, and in order to have money to bear his necessary expenses he placed said sum of money in the hands of defendant, with the understanding and agreement that when he needed money thereafter it would be furnished him by the defendant, and said note was taken as a memorandum of the amount so received, and none of the claims the defendant then had against the' said Samuel Brown wex*e settled at the time said note was taken; that thereafter the defendant did furnish the said Samuel Brown money as he needed it, paid taxes for him, paid necessary expenses, accounts, etc., as will appear by defendant’s offset hereinafter set forth; that some of the payments so made by defendant for Samuel Brown, and at his request, were credited and indorsed on said note, and others were not.
1 ‘ Defendant, further answering, states that at the ■death of the said Samuel Brown he was indebted to him in the sum of $937.97 for services rendered, money paid out and expended for his use and benefit and at his special instance and request,” etc.
The defendant pleads this amount of his said olaim as an offset to the note sued on. The replication
The court instructed the jury for plaintiff “that although they believed that the items stated in the defendant’s set-off were correct as stated, ■ yet .all of those which accrued five years or more before the death of Samuel Brown, which were based on a separate agreement or contract, that is, not done under the same and continuing contract, are barred by the statutes of limitation.”
For the defendant, the court told the jury that if they believed from the evidence in the case that the .said Samuel Brown, deceased, and the defendant, James Brown, were mutually indebted, that is, each owing the other, then the plea of the statute of limitation set up by the plaintiff in his reply against all charges made by the defendant, within five years last past before the commencement of this suit, will be wholly disregarded by1 the jury, and the jury will disallow no items of the defendant’s set-off on that account.
The statute, section 8160, provides that if any two •or more persons are mutually indebted in any manner whatsoever, and one. of them commence an action against the other, one debt may be set off against the other although such debts are of different natures. And this rule is applicable in suits brought by administrators, etc. Sec. 8162. It is further provided in section 6778, that in an action brought to recover a balance due on a mutual, open and current accou/nt, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item in the account on the ■adverse side. It is, therefore, plain that from the very
All these items are on one side of the account. There is no adverse side to it. The note sued on is not an item on the adverse side of the account. On its face, the account sued on is only an open account between the parties. It has but one side to it, and hence no balance or mutuality. Where the account sued on is a running account kept open by agreement, express or implied, between the parties, constituting really one bill composed of separate items, morally connected one with another, so that it is clear that each separate item is not meant to constitute a new and independent contract, each new item draws the preceding item to itself. Ring v. Jameson, 2 Mo. App. 584; s. c., 66 Mo. 428; Harrison v. Hall, 8 Mo. App. 167; Loeffel v. Hors, 11 Mo. App. 133; Raglan v. Steamboat, 40 Mo. 244; Vito Viti v. Dixon, 12 Mo. 315; Fulton Iron Works v. Smelting Co., 80 Mo. 265; Finny v. Brant, 19 Mo. 45. And whether there was an express or implied agreement of this kind between the parties is for the jury to say under proper instructions. In the absence of evidence there is no presumption that all the items of an account constitute one demand. This must be proved. The charges in the
“Mutual indebtedness,” without something more, is not enough to withdraw an. entire account without the operation of the statute of limitations, where some of the items thereof are within its bar. If an account, as is the case here, is a running one between the parties, and not the open, mutual and current account as defined by the statute, then the items within the statute can be drawn without it only by proving an express or implied general agreement or arrangement which extends to the whole account. The defendant’s instruction was misleading. The jury had a right, under its direction, as no doubt they .did, to believe that if the defendant was indebted to deceased by note, and the deceased was indebted to the former by an open account, that this was a mutual indebtedness which was sufficient to save
Besides this, it is subject to the further objection as being repugnant and contradictory in its enunciation to the instruction of the plaintiff. If the agreement as to advances of money alleged in the answer had been broad enough to comprehend all the varied items charged in'the account, as it was not, then when proved it would have been sufficient to have made, in legal contemplation, all the items thereof one account, and would have had the operative effect to withdraw it in its entirety from within the operation of the statutory bar.
There is no evidence of the agreement mentioned in the defendant’s third instruction, and for that reason it should not have been given.
It results that the judgment should be reversed and the cause remanded.
