Chew v. Baker's Administrators

(nem. con.) said that the account in bar, as it is called, (being only a statement-of debits against the plaintiff,) did not take the ease out of the statute, although the last item was within the three years.

Mr. Key, for the defendant, then contended that the plaintiff’s cause of action accrued monthly, as- the payments were to be made monthly, as the defendant received money from the Chesapeake and Ohio Canal Company, upon the monthly estimates of his work by the engineer; and three years had expired after the monthly estimates, and after the defendant had received the money, before the suit was brought. And he prayed the Court to instruct the jury, that if they believe from the evidence, that prior to the 10th of August, 1831, all the money due for the work on section-B, (which was the work for which this action was brought,) had been received by the defendant’s intestate, except the balance appearing on the final estimate, then the plaintiff is *698barred of all his claim except such proportion of the said balance as the work done by the plaintiff bears to the whole amount of work stated in the said estimate.

Which" instruction the Court (nem. con.) refused to give; Cranch, C. J., and Morsell, J., being of opinion, that, as by the agreement, Baker was to receive the money for the plaintiff, the statute of limitations did not begin to run against him until he had notice of the receipt of the money, or had demanded it.

The Court, at the prayer of the plaintiff’s counsel, instructed the jury, in effect, that if the final settlement between the defendant’s intestate and the Canal Company was not made before the 28th of January, 1832, the plaintiff’s cause of action, for his share of the one fifth retained, did not accrue before that day; and that the payments made from time to time, by the company, to the defendant’s intestate, were to be considered as payments made on account; and that if the final settlement was made on the 28th of January, 1832, and not before, and that the amount was paid on that day, the plea of limitations is no bar to the plaintiff’s action, which was commenced on the 13th of November, 1834.

Verdict for plaintiff, $2,404.81, with interest from the 28th of January, 1832.