Parker v. Schwartz

Colburn, J.

If it could be held, under the evidence in this case, that the effect of the agreement between the plaintiff and the defendant’s testatrix was to place his account against her precisely as it would have stood if he had had no partner, this would be the most favorable position for him; but the account would not have been a “ mutual and open account current,” within the meaning of the Gen. Sts. c. 155, § 5. The plaintiff had an account for goods sold and delivered to her, upon which she had merely made payments, which were immediately applied in reduction of the account. She had no account against him, upon which she had a right of action, or which could be filed in set-off. There was no mutuality in the account. Ingram v. Sherard, 17 S. & R. 347. Adams v. Carroll, 85 Penn. St. 209. Green v. Disbrow, 79 N. Y. 1 . Dyer v. Walker, 51 Maine, 104. Webster v. Byrnes, 32 Md. 86 . Prenatt v. Runyon, 12 Ind. 174 . Angell on Limitations, §§ 143-145. Each payment would, of coui-se, have the effect of a payment, in taking the account upon which it was made out of the statute of limitations. We do not intend to decide that items of money may not as well be proper items of charge, in a “ mutual and open account current,” and have the same effect as items of merchandise; but only that they do not have that effect when they are strictly payments. See Dickinson v. Williams, 11 Cush. 258 .

The precise question raised in the case at bar does not appear to have been decided in this Commonwealth. We are aware of *32 no decision in conflict with the conclusion at which we have arrived, although in Penniman v. Rotch, 3 Met. 216 , there are some dicta which appear to indicate a different view.

If it can be contended, on the evidence, that the parties agreed that the account should be a “mutual and open account current,” it was not competent for them, by an oral agreement at least, to bring within the statutory exception an account which was not in fact within it. It would be similar to an agreement that a payment had been made, in order to take a debt out of the statute, when it had not been made in fact. Blanchard v. Blanchard, 122 Mass. 558 .

It was perfectly competent for the plaintiff to show the agreement with the testatrix, in order that he might maintain an action, in his name only, on an account, part of which had been due to him and his partner ; but its admission for this, purpose, without objection, did not authorize its use, as the plaintiff proposed to use it, for a different purpose, for which it was not competent.

Exceptions overruled.