1842. chants' account within the statute. [Erskine J. But it was not shewn at the trial that there was such an agreement.] It was undoubtedly treated at the trial as PARTRIDGE. one current account between them. [Cresswell J. That COTTAM V. might make a set-off unnecessary.] The application made by the plaintiffs' clerk to the defendant shews the light in which the account was considered by the parties. He applied for a settlement of the account, not for payment of the price of the goods; it is therefore clear the plaintiffs only demanded the balance of an account. The case of Inglis v. Haigh (a) was decided after the present action had been tried. After that decision the plaintiffs in this case, if successful in this application, may not think it expedient to proceed to judgment. But this is not a motion in arrest of judgment: the question is, how the verdict is to be entered. As to the second point, there are three ways by which claims, which would otherwise be barred by the statute of limitations, may be taken out of its operation. One is, by an acknowledgment of the debt; which, before Lord Tenterden's act, might be verbal; another is, by payment of money in part-payment of the whole debt; "which is an acknowledgment of a debt being due, not in words, but by an act done. The third method is, where there is a mutual account between parties, who have had dealings with each other within the six years, [with reference to, and upon the faith of, such account being still unsettled between them. That was decided in Catling v. Shoulding (b); where the court were clearly of opinion that such a case was taken out of the operation of the statute. Where goods are supplied under such circumstances, although they do not technically amount to a part payment, yet they are equivalent to it; and per-1m 6 28 borobienos od jeum vb (a) 8 M. & W. 769. (b) 6 TR. 189. (And see Clarke v. Bradshaw, 3 Esp. N. T P. C. 155.; Webber v. Twill, 2 Wms. Saund. 127. n. (6). haps ought to operate more strongly than a payment, in shewing that the account is still unsettled and open. Lord Kenyon in that case uses the following language: "Here are mutual items of account; and I take it to have been clearly settled, as long as I have any memory of the practice of the courts, that every new item and credit in an account given by one party to the other, is an admission of there being some unsettled account between them, the amount of which is afterwards to be ascertained; and any act which the jury may consider as an acknowledgment of its being an open account, is sufficient to take the case out of the statute. Daily experience teaches us that if this rule be now overturned, it will lead to infinite injustice. In Cotes v. Harris (a), all the items were on one side; and Denison J., who well knew what was the proper replication in such cases, and was well acquainted with the import of the statute of limitations, said, where all the items are on one side, the last item which happens to be within six years shall not draw after it those that are of longer standing: but it was not doubted there, but that if there had been mutual demands the plaintiff might have recovered." The terms " acknowledgment or promise," in the 9 G. 4. c. 14. s. 1. do not apply to such transactions as took place between the parties in this case and in Catling v. Skoulding. Still less can a delivery of goods be construed to be an "acknowledgment or promise by words only." The court are now called upon entirely to disregard that expression. It is argued on the other side that the proviso shews that the effect of a part-payment would not have been preserved by the earlier portion of the section, and that it was necessary that it should be expressly saved by such proviso; but that is not a correct inference. The proviso may have been added ex abundanti cautelâ. [Coltman J. It seems more pro (a) Bull. N, P. 149. 1842. Соттам V. PARTRIDGE. 1842. COTTAM ข. bable that the case of a delivery of goods as an acknowledgment would have been expressly excepted, if it was so intended to be, than that of a part payment.] PARTRIDGE. The present case is quite beside the original intention of the statute, which was to prevent loose evidence of verbal acknowledgments. In Williams v. Griffiths the facts were very different from those of the present case. One of the parties was tenant to the other, and was also his servant, and was to receive wages from him. There having been no payment on either side, the court held that this was not such an open account between them as would take the case out of the statute of limitations. That case is not inconsistent with Catling v. Skoulding; or if so, it was not so solemnly decided. There was, besides, no evidence in that case of any agreement to set one claim against the other; a circumstance on which Parke B. comments in giving judgment. In Willis v. Newham (a) it was held that a verbal acknowledgment of a part payment was not sufficient to take the case out of the statute; and the same point was decided in Bayley v. Ashton (b), and in Maghee v. O'Neil (c). [Cresswell J. That is a wholly different point.] In Tippets v. Heane (d), Parke B. says, "the principle upon which a part payment takes a case out of the statute, is, that it admits a greater debt to be due at the time of the part payment. Unless it amounts to an admission that more is due, it cannot operate as an admission of any still existing debt." And his lordship expressed a similar opinion in giving the judgment of the court in Waters v. Tompkins (e). The cases of Hart v. Nash (g), and Hooper v. Ste (a) 3 Y. & J. 518. (b) 12 A. & E. 493., 4 P. & D. 204. (c) 7 M. & W. 531. (d) 1 C. M. & R. 252., 4 Tyrwh. 772. (e) Tyrwh. & G. 137., 2 C. M. & R. 723. 725. (g) 2 C. M. & R. 337., Tyrwh. 955. 5 1842. Соттам v. phens (a), establish that a delivery of goods may be equivalent to a part payment in money. Now, in the present case, it is clear, that the delivery of goods had been so treated by the parties; the defendant having PARTRIDGE. been applied to for payment, not of the price of the whole of the goods, but only for the balance of the account. There is no sound and substantial difference between those cases and the present. TINDAL C. J. To this action, which is for goods sold and delivered, the defendant, except as to 37. 8s. paid into court, has pleaded the statute of limitations. The plaintiffs, in order to avoid the effect of the statute, have in their replication divided their demand into two, alleging, as to 37. 9s. 6d., part thereof, that the causes of action did accrue within six years before the commencement of the suit; and as to the rest of their claim, "that the said residue of the said causes of action were and are and relate to accounts still open and unsettled concerning the trade of merchandize between merchant and merchant, that is to say, between the plaintiffs and defendant as merchants," &c. What the object of the plaintiffs could be, except indeed with a view to costs, in separating their demand, when the whole arose out of the same series of transactions, it is difficult to say. However, they have a right to our opinion upon the two questions thus raised. In Inglis v. Haigh (b), the court of Exchequer seem to have decided that the exception in the statute of limitations, as to merchants' accounts, applies only to cases where an action of account, or an action on the case for not accounting, will lie, but not to an action of indebitatus assumpsit. Without going so far as that decision (though I do not mean to (a) 4 A. & E. 71., 7 C. & P. 260. S. C. nom. Cooper v. Stevens, 5 N. & M. 635. (b) 8 M. & W. 769. Suprà, 277. 1842. COTTAM v. PARTRIDGE. impugn it), I think that the exception is not applicable where an action of account cannot be maintained; and I am of opinion, that, under the circumstances of the present case, an action of account would not lie. [His lordship read the third section of the statute, 21 Jac. 1. c. 16. (a)] The exception, therefore, extends only to such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, and cannot apply except where an action of account, or an action on the case for not accounting, would lie. Is this a case in which an action of account could be maintained? It is laid down in Selwyn's Nisi Prius, p. 1. 8th ed., that, "by the common law, an action of account for the rents and profits, may be maintained by the heir after he has attained the age of fourteen years, against the guardian in socage; so at the common law, account will lie against a bailiff or receiver, and, in favour of trade and commerce, by one merchant against another.” It has not been contended, that an action of account will lie in every case where there have been sales of goods between tradesmen, but only where there are mutual accounts, and an agreement has been come to, that the one shall be set off against the other, and the balance alone is claimed by the party in whose favour it is found; for, otherwise, the case could not be distinguished from the ordinary one of goods sold and delivered, with a claim of set-off of a similar description. The cases put in Selwyn shew that the action of account is founded upon some trust or privity between the parties; as, for instance, there is a confidence or trust between the heir and his guardian; between the owner of land and his bailiff or receiver; and between merchant and merchant. The exception in the statute extends, not only to accounts between merchant and merchant, but also to (a) Antè, p. 275 n. (d). |
