delivered the opinion of the Court:

Appellant presents the following assignments of error:

“The court below erred as follows:

“1. In overruling defendant’s objection to swearing the jury, and in proceeding with the trial of the case.

“2. In refusing to grant defendant’s first prayer.

“3. In refusing to grant defendant’s second prayer.

“4. In refusing to grant defendant’s third prayer.

“5. In refusing to grant defendant’s fourth prayer.

“6. In refusing to grant defendant’s fifth prayer.

“7. In refusing to grant defendant’s sixth prayer.

“8. In refusing to grant defendant’s seventh prayer.

“9. In reading to the jury when they returned into court after retiring to consider their verdict, portions of the testimony of Kline and Smith and certain deeds, as set forth in the record at pages 22 to 26.

“10. In reading to the jury more than was requested.

“11. In refusing to instruct the jury as asked by defendant in respect of-the failure of plaintiff to call Simpson as a witness.

“12. In refusing to instruct the jury as to the effect of the verdict and judgment.”

*352The first assignment of error is not properly before us for consideration. The proceeding being upon a mere rule of court, appellant will.be deemed to have waived the advantage of the rule, unless objection was made to the ruling of the court and an exception noted. It appears that no objection was interposed to the removal of the case from the stet calendar. Numerous continuances were had over the objections of appellant, but no ground of objection was stated, or exception taken. In the absence of such objection and exception, no question is here presented for review. It is insisted, however, that appellant’s motion of April 22, 1907, to reverse the interlocutory order of the court, rendered January 5, 1903, removing the cause from the stet to the trial calendar, was sufficient to raise, for review, any question touching such removal that might have been raised at the time the order was made. It is unnecessary to consider this point for the reason that appellant’s motion was not filed as required by the rule of court, which is as follows: “Every motion shall be made in writing, and shall, together with the papers upon which it is founded, if made upon matters not already of record, be filed in the clerk’s office; and a copy of the motion, and of the affidavits or papers upon which the same is founded, must be served upon the opposite party, or his attorney, at least two clear days, Sundays included, except when otherwise provided by law, before the day fixed for the hearing.” This motion was in writing, but it was not filed in the clerk’s office, or notice given, as required by the rule. In fact, the motion was not presented until the jury was sworn and the court was ready to proceed with the trial. This was too late. Appellant will be held to have waived any objection that he may have had to the action of the court on January 5, 1903, in transferring the case from the stet to the trial calendar.

The second, fifth, sixth, seventh, and eighth assignments of error relate to the refusal of the court to grant certain instructions requested by counsel for the appellant to the effect that the evidence was not sufficient to support a recovery against the appellant for the amounts claimed in appellee’s declaration, either in whole or in part. We are of the opinion that the evidence *353tending to establish appellant’s liability was sufficient to present a case for the consideration of the jury. It was submitted with an impartial and careful charge by the court. On this branch of the case, we find no error.

The third assignment of error is based upon the refusal of the following instruction: “Unless the jury find from a preponderance of all the evidence that the defendants, Kimmel, Simpson, and Smith were jointly interested in all the houses for which they find from the evidence (if they do so find) material was furnished by the plaintiff, then their verdict should be in favor of the defendant Smith.” Appellee’s declaration set forth two causes of action, one for material furnished in the construction of the fourteen houses, and the other in the construction of the six houses. This instruction, if given, would have operated to take from the jury the right to find a partnership existing as to one set of houses, and not as to the other, or vice versa. The general charge of the court to the jury required the jury to determine from the evidence whether or not the appellant was jointly interested, as owner or proprietor, in the building of the houses. This, we think, was sufficient to properly present the evidence to the jury for its consideration. It was proper for the jury to determine from the evidence in this case, not only the liability of the appellant for material furnished for all the houses, but for the particular ones set forth in the separate counts of the declaration.

The fourth assignment of error complains of the refusal of the court to grant the following instruction: “If the jury find from all the evidence that any of the material furnished by plaintiff was so furnished prior to July 28, 1891, then they are instructed that, as to such material, the plaintiff’s cause of action is barred by the statute of limitations, even though they should find that payment generally on said account of such material was made by the other defendants after July 28, 1891, unless they shall further find that such payment was made with the knowledge and by the direction of the defendant Smith.” - It appears from the record that material amounting in value to $5,592.16 had been furnished by appellee, under the arrangement we are here considering, more than three years before *354this action was commenced. It is therefore insisted that the claim here sought to be recovered is barred by the statute of limitations. It was not error to refuse this instruction, for the reason that the evidence tended clearly to show that appellee’s contract was a continuing one to furnish materials for the twenty houses. Materials were delivered from time to time under their general contract, and the price thereof entered into a running account, upon which payments were made from time to time. We think the whole account must be considered as one account, with the element of mutuality running throughout the whole transaction. In such a case, the bar of the statute does not begin to run until the date of the last item appearing in the account.

Assignments of error nine to twelve, inclusive, arise from the court having read to the jury certain portions of the evidence from the stenographer’s notes. It appears that, after the jury had been considering the case for a number of hours, they returned to the courtroom and propounded certain questions to the court, among others, requesting that certain evidence should be read to them. This request was granted. It is unnecessary for us to consider these assignments, as counsel for defendant was present and made no objection to the reading of the testimony, or any part of it. The only objection made by counsel was that the court had substituted his version or recollection of the testimony for the recollection of the jury. This objection cannot avail appellant for the reason that it clearly appears that there was no variance between the evidence of the witnesses which was read to the jury by the court and the evidence of the same witnesses as it appears in the record. Neither is there anything to show that the deeds read in evidence before the jury retired were not the identical deeds read to them at their request. So far as the objection that the court read to the jury more evidence than was requested, is concerned, it appears that the evidence so read consisted of but three questions and answers, which were in appellant’s favor, and he could not in any way have been prejudiced by the mistake of the court. Appellee was not required to call the alleged partner Simpson as a witness. There was. no *355error in the court’s refusal to instruct the jury as to the effect of the verdict and judgment, as requested by counsel for appellant.

A careful review of the entire record in this case fails to disclose any reversible error. The judgment of the Supreme Court of the District is affirmed with costs, and it is so ordered.

Affirmed.