Swift v. Swift

The plaintiff in his complaint alleged that the defendant was. indebted to him “ in the sum of $35, balance duo plaintiff on an account running between the plaintiff and defendant for the past *588ten or twelve years for labor and services and horse pasture, etc., over and above any set-off or counterclaim.” The defendant denied the complaint, set up the Statute of Limitations, and a counterclaim for goods sold and delivered and cash paid for plaintiff’s benefit and at his request. The plaintiff denied the counterclaim. Each upon demand'of the other filed a bill of particulars. Only two items of the plaintiff’s bill, amounting to fourteen dollars, were within six years before the commencement of the action. The recovery -was for twenty-five dollars and twelve cents.

The plaintiff in order to sustain his judgment needs the benefit of section 386 of the Code of Civil Procedure, which provides that “In an action brought to recover a balance due upon a mutual, open and current account, -where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side.”

When the plaintiff rested no mutual account had been shown. The plaintiff claims that a question put by him calling for proof on this subject was ruled out by the justice on the objection of the defendant. If in this respect the court erred, the plaintiff cannot here take advantage of the error. He does not appeal. The plaintiff, however, claims that the proof on the part of the defendant supplied the deficiency.

The bill of particulars filed by the defendant consisted of four items. Hone of these the plaintiff admitted. As to three of the items, the evidence, as the plaintiff correctly claims, was not sufficient to charge the plaintiff. The fourth item was fifty-one dollars and twenty-six cents. The testimony of the defendant as to this item was that it was for merchandise sold to the plaintiff to go on to his place and was the balance after deducting therefrom an item of twenty-eight dollars credited to plaintiff for board of the defendant’s horse in pursuance of an understanding to that effect witli plaintiff. This item of twenty-eight dollars is one of the items in plaintiff’s bill of particulars and accrued in 1881 and 1885. The arrangement for credit of this on the merchandise account is not denied by plaintiff. He says the merchandise -was had by his mother.

In the plaintiff’s bill of particulars there are ten items amounting altogether to eighty-four dollars. There is no evidence to prove *589one of them, being six dollars, for stone had by defendant in 1881 or 1882. Three other items, amounting to seventeen dollars, were for chattels borrowed by defendant in 1881 and 1882 and not returned. An item of four dollars was for pears destroyed in 1891 by defendant’s horses. These items were not made matter of account prior to the suit. The plaintiff on his cross-examination testifies as to his bill of particulars: “At the times the matters occurred I kept no book account of them. * * * There never was any understanding that any of his articles should be an offset for the use of mine. I have never credited him with anything I had of defendant. * * " Q. Did you present any bill to defendant. A. No, I presented no bill until mentioned in bill of items which are in court.”

If the item of fifty-one dollars and twenty-six cents for balance on merchandise is to be deemed proved in accordance with the testimony of defendant, the item of twenty-eight dollars in plaintiff’s bill is accounted for and the balance of fifty-six dollars reduced to four dollars and seventy-four cents. Deducting the item of six dollars for stone not proved and the balance is in favor of defendant. Besides it is doubtful at least whether the items for chattels borrowed in 1881 and 1882 form any part of a current account within the meaning of the statute. (Green v. Ames, 14 N. Y. 233, 234; Becker v. Jones, 37 Hun, 37; Huebner v. Roosevelt, 6 Daly, 337; Perrine v. Hotchkiss, 2 T. & C. 372.)

It seems to follow that the evidence Avhich plaintiff needs in order to show a mutual account, shows also a credit to defendant to such an. extent that the verdict for plaintiff cannot be sustained.

All concurred.

Judgment of the County Court and of the Justice’s Court reversed, with costs in all the courts.