15 Gratt. 487 | Va. | 1860
The controversy in this case hinges
The first act, the provisions of which it seems to me necessary to notice particularly, is the act of 1748, entitled “ an act prescribing the method of proving book debts.” 6 Hen. Stat. at Large, p. 53. The preamble recites: Whereas the trade of merchandise in this colony is chiefly carried on by retail, and the goods and merchandises are often delivered to the buyer by the retailer himself, and it frequently happens that nobody is privy thereto but the buyer and seller, so that in many cases there may be a defect of legal evidence to charge such buyer, and by that means a fair trader may be hindered from recovering a just debt; and the act then proceeds to declare that in any action of debt or upon the case where the plaintiff„shall declare upon an emisset or indebitatus assumpsit. for goods, wares or merchandises by him sold and delivered to any other person or persons, and upon the trial of such action such plaintiff shall declare upon his oath, that the matter in dispute is a store account, and that he hath no means to prove the delivery of the articles therein contained, or any of them, but by his store book; in that case, such book may be given in evidence at the trial, if he shall make out by his oath that such book doth contain a true account of all the dealings, or the last settlement of accounts between them, and that all the articles therein contained were bona fide delivered, and that he hath given all just credits due to the defendant in such account; and such book and oath shall be admitted and
It is not necessary to advert to the act of 1732, 4 Hen. Stat. at Large, p. 329, which is repealed by the 5th section of the act aforesaid of 1748, further than to observe that it is substantially, as well in its preamble as in all its provisions relating to the matter in hand, identical with the act of 1748, with the exception that the period within which the goods are to be delivered is eighteen months instead of two years.
The act next to be noticed is that of 1779, which is entitled “ an act for discouraging extensive credits, and repealing the act prescribing the method of proving book debts.” After reciting that the method of proving book debts, and the long and extensive credits formerly given by merchants and traders, had been found by experience injurious to the people of this commonwealth, this statute repeals the act of 1748, and then proceeds to declare that all actions founded upon accounts for goods, wares and merchandise sold and delivered, or for any articles charged in any store account, shall be sued within six months next after the cause of such action, or the delivery of such goods, wares and merchandise, and not after; it requires the date of the articles charged in any such account severally to be particularly specified; affixes a penalty to the post-dating of any article in such account; and makes it the duty of every court and jury before whom any such action shall be tried, ex officio to take notice of the* act, although the defendant may fail to plead it.
By the act of 1789 (13 vol. Hen. St. p. 5) the act
In the case of Tomlin & als. v. Kelly, 1 Wash. 190, decided in 1793, the jury found a special verdict in the following words : “ We find for the plaintiff's one hundred pounds nine shillings six and a half pence damages, if the court, shall be of opinion that an action can be maintained for goods, wares and merchandises imported for sale by the plaintiffs who hept no retail store, but who sold the same at public auction on a wharf, and delivered them to the defendant twelve months before this suit was brought — otherwise for the defendant.” The District court gave judgment for the defendant upon the verdict, and the plaintiffs obtained a supersedeas from this court.
In the course of the argument before this court it was urged that the mischief which it was the aim of the act of 1779 to remedy, existed only in the retail business, which almost entirely formed the internal commerce of this country before the war, and of course must have been alluded to by the legislature; and that additional proof that the retail trade alone was contemplated, was to be derived from the clause of the law requiring each item in the account to be truly dated. In answer to this, it was said that the second clause of the act created a bar against all actions founded upon accounts for goods sold and delivered, or for any articles charged in any store account; and why (it was asked), if the law only meant store accounts, was the former part of that clause inserted, as the latter would have answered the purpose ? It was also further said, that if it were politic to prevent extensive credits in the confined sales of a retail store, the reason applied a fortiori to extensive wholesale
“In discussing the case of Beall v. Edmondson (he says), it was agreed, by the unanimous opinion of a full court, that the act of 1779 applied only to the store accounts of retail dealers; and we should feel ourselves bound by that opinion, unless it were overruled by as full a court, even if our sentiments at this time, respecting the principle then established, were different from what they then were. But the present court retain the same opinion upon the subject; and must therefore pronounce the law to be in favor of the plaintiff, upon the special conclusion of the verdict.”
On referring to the case of Beall v. Edmondson (3 Call 514), mentioned in the foregoing opinion, it will be seen that it was the case of a suit for goods, wares and merchandise, in which the jury found a special verdict for the plaintiff, subject to the opinion of the court, whether an express assumpsit of the defendant took the debt out of the act of 1779. The true question submitted to the court -in that case, it will be seen, was whether the statute of 1779 had any application to the case of an express promise by the defendant to pay the amount of a store account; and in their written opinion they confined themselves to that question, and held that the statute applied only when it was necessary for the plaintiff to produce and rely on his account, and did not embrace the case of an express promise to pay, upon which a suit might be maintained without the account. The court in their written opinion say nothing as to the act of 1779 ap
In the case of Moore v. Mauro, 4 Rand. 488, decided by this court in 1826, the declaration was in assumpsit for goods, wares and merchandise sold and delivered ; and there was a special plea that the action was founded on an account for goods, &c., and that the supposed cause of action did not accrue within one year. To which there was a special replication, that at the time of the sale of the goods, “ the plaintiff' and the defendant were merchants, and that the goods were sold and delivered by the plaintiff as such merchant, to the defendant as such merchant.” The only question before the court (necessary to be noticed here) was as to the effect of the special replication. The replication was founded on the saving, in the 4th section of the act of 1819, in favor of “suchaccounts as concern the trade of merchandise between merchant and merchant, their factors and servants;” and it was objected in the argument that this saving did not apply to the actions mentioned in the 7th section of said act. In noticing this objection, the president (Brooke), delivering the opinion of the court, said, “ It would be strange indeed if this construction was to prevail ; if an action of indebitatus assumpsit between merchant and merchant is not to be barred by the saving in the
It is perhaps as convenient to state here as any where else, that I cite the case of Moore v. Mauro simply for the purpose of showing that this court still regarded the act of 1779, and consequently the 7th section of the act of 1819, as applying only to the store accounts of retail dealers. There is no ground whatever for supposing that this case can be brought within the saving of the 5th section of the 149th chapter of the present Code relating to accounts concerning the trade of merchandise between merchant and merchant, as that saving in its very terms applies only to cases “ where the action of account would lie;” and this is obviously not a case of that character: For it is now well established by the English as well as the American decisions, that the saving in the act, 21 James 1, ch. 16, applies only to cases where the accounts are between merchant and merchant, relate actually to merchandise and not merely to mercantile contracts connected with it, and are current and mutual; in which last designation is not included cases where the demand is altogether on one side, though payments on account have been made. Inglis v. Haigh, 8 Mees. & Welsb. 781, and notes; Spring & als. v. Gray's ex'ors, 6 Peters’ R. 151; Toland v. Sprague, 12 Peters’ R. 300; Coster & als. v. Murrays, 5 John. Ch. R. 522; Murray v. Coster, 20 John. R. 576; 1 Rob. New Pr. 592-3-4-5; Rep. Revisors, note, 742.
The case of Moore v. Mauro is, however, as I have already said, useful for the purpose of showing that this court in 1826 gave to the saving in the act of 1819 in relation to store accounts, the same construction which,
Such was the state of the law on the subject (with the exception that in 1838 the time was changed from one year to two years) when the legislature came to act on the report of the revisors in 1849. In the 5th section of ch. 149, as reported by them, all actions upon contracts not in writing were placed on the same footing and made subject to a limitation of three years, except actions of account by one partner against another for a settlement of the partnership accounts, or concerning the trade of merchandise between merchant and merchant, their factors or servants, and actions on the case between such parties for not accounting; in either of which cases the parties were allowed five years after a cessation of their dealings, in which to bring their actions. Under this section, as recommended by the revisors, there was no distinction between store accounts and any other accounts (other than those expressly saved). The legislature, however, whilst adopting the other provisions of the section in the very words of the revisors, refused to alter the existing laws in respect to the limitation on open accounts generally, and the limitation on store accounts, and required that actions on the former should be brought within five years, and on the latter, within two years.
The question as to the propriety of adhering to the peculiar policy (known only to the laws of this state and the state of Kentucky) which had prevailed since 1779, of placing the accounts of retail dealers, with their customers, on a special footing, or of abolishing
In proceeding to apply these views to the instructions given to the jury by the Circuit court, it is scarcely necessary to say, that the propriety of both instructions must depend on the same question; inasmuch as the written acknowledgment by the defendants of the account of the plaintiffs, as well as all the items of the account, are of a date more than two years antecedent to the bringing of the action; and the 7th section of chapter 149 of the Code gives to a plaintiff relying on such a written promise the same number of years thereafter, within which to bring his action, that is prescribed in the 5th section for bringing the action on the original contract.
In propounding to the jury the other proposition contained in the instructions, it is obvious that the judge must have proceeded either upon the idea that the account of the plaintiffs, whether an account of wholesale or retail dealings between the parties, was barred by the limitation of two years, or, upon the assumption that the account was of the character last mentioned. Upon the first mentioned view of the instructions, the construction which I have given to the statute shows that they were erroneous; in the other alternative, the error in giving the instructions is, I think, equally apparent. In the declaration the plaintiffs are styled as merchants and partners trading un
Because of the error of the Circuit court in respect to the instructions, the judgment ought to be reversed, the verdict set aside, and the cause remanded for further proceedings in accordance with the principles herein declared. The mode of pleading the act of limitations — simply “the act of limitations” — was irregular; but no objection was made by the plaintiffs to the receiving and entering the plea in that form ; and it is difficult to suppose that they could have en
Moncure and Robertson, Js. concurred in the opinion of Daniel, J.
The following is the judgment of the court:
It seems to the court, that according to the true construction of the provision of the 5th section of the 149th chapter of the Code of 1849, requiring actions for any articles charged in any store account to be brought within two years after said actions shall have first accrued, said provision does not embrace the wholesale dealings of importing and wholesale mer'chants, but applies exclusively to the store accounts of retail dealers with their customers; and it appearing to the court, from the certificate of the judge of the said Circuit court, that there was no evidence to show whether the account filed was of dealings by wholesale or by retail, other than what appears from the face of said account, proved to be correct, and that the evidence furnished by said account tends to show that the several sales and dealings between the parties were by wholesale and not by retail, it seems to the court that the instructions given by the Circuit court were erroneous.
It seems further to the court, that the plea of the act of limitations by the defendants is defective in not stating on what provision of the statute the defen
Therefore, it is considered that the said judgment be reversed.