Weatherwax v. Cosumnes Valley Mill Co.

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

Suit on an open account. The Statute of Limitations, among other defenses, was pleaded by defendants. It seems some payments were made by the defendants. It is not questioned that the account was due for more than a year. It is argued that these payments make the account a mutual account within the exception of the statute. (Art. 18, sec. 18, Wood’s Dig. 48.) That exception is as follows : “ 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 shall be deemed to have accrued from the time of the last item in the account on either side.” But it is well settled “ that where payments have been made by one party, for which credit is given by the other, it is an account without reciprocity and only upon one side.” (Angell on Lim. 164, sec. 149.)

We see no facts which withdraw the case from the influence of the statute. The mere fact that the memorandum book of the plaintiffs and that kept by the defendants were compared, and the result ascertained, and the accounts orally acknowledged by one of the defendants to be correct, is nothing more than a parol admission of the correctness of the account. These books were not produced, and if they had been, under our statutes, the mere entries of the items, though orally acknowledged to be correct, would not place the account on a different footing, so far as the Statute of Limitations is concerned, than if no such acknowledgment had been made. Article thirty-one, section thirty-one of the act (Wood’s Dig. 49) declares that no acknowledgement or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the statute, unless the same be contained in some writing signed by the party to be charged thereby.

We do not regard the fact that one of the defendants gave plaintiffs a lump of gold amalgam to be sent to the mint for coinage [352]as having any effect upon the case in respect to the statute. The proceeds were paid to the plaintiffs, and credited on the account.

The jury specially found in favor of defendants upon this plea of the Statute of Limitations; and this finding, which seems to be supported by the proofs, is conclusive of the case. It is not necessary to examine other points.

Judgment affirmed.