Manning v. Irish

Day, Ch. J.

l.iutACTicBin cow-t^ime^f exceptions, I. A bill of exceptions was signed by the judge on the 1st day of November, 1876. A motion was made, and is submitted with the case, to strike this bill of exceptions from the record, because it was not signed within the time allowed by the order of the court and agreement of parties. The judgment was rendered on the 21st day of October. By agreement of parties ten days were given to file 'the bill of exceptions. Sec. 23 of the Code provides that in computing time the first day shall be excluded, and the last included, unless the last falls on Sunday, in which case the time prescribed shall be extended *652 so as to include the whole of the following Monday.” Under this rule the tenth day from the time judgment was rendered fell on the 31st day of October, which was Tuesday. This bill of exceptions, therefore, was not signed within the time agreed upon, and appellee’s motion to strike it from the record must be sustained.

■ II. The offer to-confess judgment was made under section 2899 of the Code. Appellant claims that no notice was served on plaintiff that this offer would be made, and that he was not personally present when it was made. The bill of exceptions being stricken from the record we have no legitimate means of determining what were the facts respecting this claim. If it should be conceded that plaintiff’s personal presence was necessary, unless he had three days’ notice that the offer would be made, we would be required, in support of the judgment of the court below, in the absence of proper showing to the contrary, to presume such presence or notice. Put even the bill of exceptions does not show that plaintiff was not personally present when the offer was made.

2 jüdgmrnts: 0ÍÜ61 to COIl-fess: costs. III. It is claimed that the offer is insufficient because it did not embrace the costs accrued at the time it was made. This objection is without merit. The offer was to • i * • /» a i • (y> /•* confess a judgment m favor of plaintiff for a certain amount. The costs already accrued ■ would follow this judgment as an incident. The court would have had full authority to enter up a judgment against defendant for the amount offered to be confessed, and for all costs incurred before the offer was made.

3.-: aocount: settlement. IY. The plaintiff’s suit was instituted upon accounts, copies of which were attached to the petition, the , . n x abstract of which is as follows:

J. D. Irish m acooimt with E. Manning. Dr.

To goods, wares and merchandise, including repairs on

Irish’s wagon; total..........................$264.52

To repairs on Irish’s wagon....................... 11.74

To accrued interest.............................. 114.74

Total charges $373.00

*653 Account of charges commences March 18,1867, and ends J anuary 14, 1S7 6.

CONTRA.

By cash, work, etc., including 16 days work by boy,

credited at $20.00, making total credits........$137.45

Interest on same................................ 32.08

Total credits.............................$169.53

Credits commence June 15, 1867, and end January 8, 1876.

Balance.................................$203.47

J. D. Irish to E. Manning. Dr.

March 1, 1876. To house rent one year and eleven

months, at the rate of $75.00 per year.......... $143.75

Interest on same................................ 12.08

To damages to rented property................... 50.00

Total............ $205.83

Add balance store account...............'........ 203.47

Total account after allowing credits .■.........$409.30

The defendant, in his answer, claimed of the plaintiff the following sums:

For use of defendant’s wagon from May 1 to November 18, 1867,168 days, at 50 cents per day...... $84.00

For injuries to said wagon by overloading.......... 15.00

For the work of defendant’s boy, credited by plaintiff at $20.00 ......:........................... 32.00

For work on stable, fence, houses, and keeping them in condition generally, in all ,................... 50.00

-For injury to defendant’s premises during the years 1875 and 1876, by plaintiff’s teams, horses, and hired men..........................i....... 150.00

For buggy hire 3 days, at $1.00 per day............ 3.00

For sleigh one day.............................. 1.00

For witness fees in case of Manning v. Fletcher..... 1.25

For account of Hunter & Co., which is defendant’s property.............................. 29.47

*654 . On all these various sums the defendant asked judgment for $325.00, with interest. The jury, by special verdict, found the defendant entitled to about $164.00, on the items of his account. They found a general verdict for plaintiff for $199.64. They must, therefore, have allowed plaintiff, on the items set forth in his account, a little more- than $350.00. Appellant claims that the offer to confess had reference to and included only the items embraced in plaintiff’s account, without regard to the additional items of account which defendant had against plaintiff, and that if the offer had been accepted defendant might still have recovered on the items of his account. Thus construing the offer it is claimed that the plaintiff in fact recovered enough to discharge defendant’s account to the extent of $164.00, and $199.64 more, which is much more than defendant offered.

We feel satisfied that this position is not correct. It is to be observed that the plaintiff set forth in his petition items both of debit and credit; the presumption is that he claimed all that he considered due himself, and .that he set forth all the credits to which he was willing to admit the defendant was entitled. ITe in effect said to the defendant, “after allowing you all the credits to which you are justly entitled from the 15th of June, 1867, to the 8th of January, 1876, you owe me $4S9.30.” The defendant said, in effect, “ I do not owe you so much. If I were allowed all just credits your claim would be greatly reduced; but I am willing to confess a judgment in your favor for $216.00.”. If this offer had been accepted and a judgment had been rendered for the amount, it would have operated asa settlement of all prior accounts. Neither party could have sued upon any prior item of account without showing that it had been omitted through mistake or fraud. As to the effect of settlement of an account, see Bull v. Harris, 31 Ill., 487 ; Lee v. Reed, 4 Dana (Ky.), 109; Kennedy v. Williamson, 5 Jones (N. C.), 284; Town v. Wood, 37 Ill., 512 ; Stiles v. Brown, 1 Gill. (Md.), 350; Hodges v. Hanford. 17 Vt., 615 ; Martin v. Beckwith, 4 Wis., 219 .

The plaintiff did not recover more than the defendant offered to confess a judgment for, and the costs accrued subsequently *655 to the offer were properly taxed to the plaintiff. We discover in the record no error.

Affirmed.