73 F.2d 513 | D.C. Cir. | 1934
The appellant Woodward, as surviving partner of Woodward <& Victh, a copartnership, filed a declaration in the lower court against the appellee, Armstrong, claiming judgment against him in the sum of $1,530.01, for “inonev before that time lent and advaneed by the said co-partnership to the said defendant at his special instance and request, and to be paid to the said co-partnership when he, the said defendant should be thereunto afterwards requested”; that appellant, as surviving partner, became the owner of the claim; and that it is wholly due and payable, but unpaid, and appellant claimed judgment therefor. Appellant filed with his declaration particulars and amended particulars of demand in support of his claim.
Thereupon appellee filed a demurrer to the declaration, together with the bill and amended bill of particulars filed in conjunction therewith, upon the ground, as alleged, that the cause of action set out in the declaration accrued more than three years prior to the date of the filing thereof and was therefore barred by the statute of limitations of the District of Columbia.
The court sustained the demurrer upon the ground that the cause of action set out in the declaration was barred by the statute of limitations. Whereupon the appellant elected to stand upon his declaration as filed, and judgment was rendered against him accordingly. This appeal was then taken.
We think that the judgment of the trial court was erroneous. The allegations of the declaration do not disclose that the claim sued upon is barred by the statute of limitations. In the particulars of demand and the amended particulars of demand the plaintiff sets out an account apparently of mutual debits and credits commencing with January 1, 1929, and extending to October 3, 1930, which is stated to bo a copy of an account kept by defendant, as shown by the books of the copartnership.
It is settled law that where there is a mutual open account between two parties it is implied that they have mutually consented that the items occurring from time to tíme in favor of the respective parties shall operate as mutual set-offs, and that the shifting balance, when either or both shall call for it, shall be the debt, and for this reason the statute of limitations does not run during such a state of mutual dealings, but only from the date of the last item; and if the last item is within the statutory period of limitations, it draws after it the items beyond that time. 17 R. C. L. p. 730, § 91.
According to the particulars of demand and the amended particulars of demand attached to the declaration in the present case, it fairly appears that the claim sued upon is the net debit balance due from appellee arising from a continuous running account bo
Therefore, we do not find it apparent upon the face of the declaration that the cause of action therein stated was barred by the statute of limitations. Accordingly the judgment of the lower court is reversed, with costs, and the cause is remanded, with directions to overrule the defendant’s demurrer, and for such further proceedings as are not inconsistent with the present opinion.