Rocca v. Klein

Belcher, C. C. This is an action to recover the sum of $387.25, balance alleged to be due plaintiff from defendant on a mutual, open, and current account.

By his answer, the defendant denied that the account between the parties was mutual, open, and current, and alleged that the plaintiff’s action was barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure.

The court found against the plaintiff as to all of the account, except $43.59, which accrued within two years prior to the commencement of the action, and for which judgment was rendered in his favor.

The plaintiff moved for a new trial, and has appealed from the judgment, and from an order denying his motion.

It is admitted for the appellant that the only question presented for decision is as to whether there were reciprocal demands between the parties, making the account a mutual, open, and current account within the meaning of section 344 of the Code of Civil Procedure.

[528]That section reads 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 is deemed to have accrued from the time of the last item proved in the account on either side.”

In Norton v. Larco, 30 Cal. 126, it was held that mutual accounts are made up of matters of set-off where there is an existing debt on the one side which constitutes a credit on the other, or where there is an express or implied understanding that mutual debts shall be satisfied or set off pro tanto between the parties. And it was further held that a payment, whether it be of money or of an article of personal property of a stipulated value, made on an account and intended as a payment, and not as a set-off pro tanto, does not make an account mutual. (See also Angell on Limitations, sec. 149; Warren v. Sweeney, 4 Nev. 101; Adams v. Patterson, 35 Cal. 122.)

The plaintiff was the only witness called upon either side. He presented his account, and testified that within two years prior to the commencement of the action he had sold defendant goods and merchandise amounting to $43.59. The account showed a balance due plaintiff on the 1st of May, 1880, of $413.25, and then a large number of charges for goods sold, running down to February 13, 1886. It also showed, numerous credits for money paid and for wheat, wood, hay, and work. In reference to the credits of money, plaintiff testified that the money was paid at the dates named in the account, and was deducted from the amounts then due thereon. And in reference to the other credits he testified as follows: “ On May 1,1880,1 received wheat from the defendant, and gave him credit on the account for $82.22, the value of said wheat. I have accepted this wheat on account at a stated value. I did not consider that the defendant had any demand against me on account of that wheat. I took it as part payment of my account