Opinion
Argued October 20, 1882
Decided October 27, 1882
Francis Kernan for appellant.
S. Earl for respondent.
First. We think there was no legal error in permitting the defendant to state from his book the items of his account against the plaintiff. The book was not offered in evidence. The witness testified that he knew that the several articles which he had stated in detail, and which appeared in the book, were delivered to the plaintiff, and in addition that he knew the entries when made, to be correct. This was original evidence of the several items of the account. The witness assumed to speak from actual recollection, using the book to refresh his memory. The questions put to the defendant were leading, but an objection on that ground is not available in this court.
Second. The point made that the cash items appearing in the account were not proved, because the question put to the defendant called for a statement of the articles delivered, and did not refer to the cash items, rests upon a hypercritical construction of the question. The question was understood to relate to the entire account of the witness with the plaintiff, including cash items as well as others. Neither the attention of the witness, nor of the referee, was called to any distinction between them. The witness answered the question on the assumption that the question called for the entire account. The plaintiff cannot now be heard to object that the question related only to shingles, produce, etc., included in the account, and not to cash.
Third. It is not a fair construction of the referee's report that he intended to find that cash items form part of a mutual, open and current account, so as to take them out of the operation of the statute of limitations. The thirteenth finding is that the money items represented payment made by defendant without any specific application thereof to any indebtedness of defendant to plaintiff, but to be applied on general account. They did not form any part of the mutual account. The payments, when made, extinguished pro tanto the indebtedness to the plaintiff. We think the evidence justified the referee in finding that the cash items were received by the plaintiff as payment on account. These payments may have been made without any special knowledge on the part of the defendant as to the state of the account, and in some instances in advance of any actual indebtedness. But that the cash was paid and received on account of actual or supposed indebtedness is a fair inference from the testimony. If made in any instance in advance, they would apply to extinguish the next indebtedness of the defendant to the plaintiff.
Fourth. If the cash in the defendant's account were payments to the plaintiff, the statute of limitations has no application. We have examined all the questions urged upon our attention by the learned counsel for the plaintiff, and our conclusion is that there is no error of law disclosed by the record. The accounts which were the subject of the controversy commenced more than twenty years before the commencement of the action. They consist on both sides of a great number of items. On one side it consisted mainly of merchandise sold by the plaintiff to the defendant, and on the other, of shingles, farm produce, etc., furnished and delivered by the defendant.
The decision of the referee on the conflicting evidence is conclusive in this court, and finding no legal error the judgment should be affirmed.
All concur, except EARL, J., not voting, and RAPALLO J., absent.
Judgment affirmed.