McLin v. McNamara, 36 N.C. 75, 1 Ired. Eq. 75 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 75, 1 Ired. Eq. 75

THOMAS McLIN vs. ROBERT McNAMARA, Adm’r. of STEPHEN FERRAND.

Where the bar of the statute of limitations against an account of ton years’ standing is repelled by an admission that the account is open, and a promise to settle it, the length of time, will not of itself, operate as a bar; but it may, connected with other circumstances, be sufficient to induce the court to require evidence of the claim so clear, consistent and natural, as to amount to positive, and almost conclusive, proof.

Whether the receipts óf a wagoner for goods sent to a factor, are, after the death of the wagoner, competent to prove the delivery of the goods to (he factor — Qu? but if they are competent for that purpose, they can only raise a probability of the delivery of the goods,-which may be repelled by opposite probabilities, as, that accounts appear to have been rendered by the factor which the principal withholds, and which, if produced, would include the articles sent by the wagoner, and would b.e better evidence of the delivety to the factor.

Where one person sold to another ceitain articles of furniture, and after-wards sent him goods to sell as his factor, and ten years afterwards, the factor, in reply to his principal calling upon him for a settlement, acknowledged that the account was open, and promised to settle it, it was held that the sale of the furniture was not an isolated transaction, which would be barred by the statute of limitations, but formed an item in the account when the parties proceeded in their other dealings, and that, therefore, the letter of - the factor repelled the effect of the lapse of time as to this, as well as- to the other,.parts of the demand.

Where one transaction between two persons, becomes an item in account between them, in consequence of their subsequent dealings as principal and factor, and as such, is taken out of the operation of the statute of limitations, by the acknowledgement and-promise of the factor to settle the account, interest cannot be claimed on the first item, uuless it can be claimed on the transactions between the parties as principal and factor, and that cannot be done where there are circumstances of laches and unfairness on the part of the principal. Under such' circumstances, interest is allowable only from the time of bringing the suit.

The bill was filed in August, 1832. It stated, that in October, 1819, the defendant’s intestate, Doctor Stephen L. Fer-rand, then residing in Salisbury, delivered to his brother, William P. Ferrand, who resided in the neighborhood of Newbern, a memorandum of sundry articles of furniture which he wished William to purchase for him in one of the Northern Cities, and have sent to him. That William could not conveniently go to the north at the time, and proposed to the plaintiff) then resident in Newbern, and extensively engaged in trade, to take the order and fill it, as he was then about going to the north — informing him that he could not pledge himself that his brother Stephen would take the articles, but that he believed he would, if they were elegant, and at prices which would afford a reasonable profit to the plai'ntiff. The bill further stated, that the plaintiff, being well acquainted with Stephen L. Ferrand, believed that he could execute the commission to his satisfaction, and, accordingly, notwithstanding the risk of a rejection, he purchased in Philadelphia many of the articles contained in the list, and imported them into Newbern; and that during the succeeding winter, he forwarded those articles, and others of equal quality which he had before purchased and had on hand for sale, by wagons, to Stephen L. Ferrand, at Salisbury; and, at the same time, delivered to William P. Ferrand a bill, with the prices, for the information of his brother. The bill stated that those prices were but a moderate advance upon the cost, So as to yield but a slight profit, as the plaintiff was ready to shew by the original bills or invoices. To the bill, was appended a copy of the account of the furniture, at very high prices, amounting to $944 85 cents. The bill stated, that upon the arrival of the furniture, Doctor Ferrand refused to accept it, being dissatisfied both with the costly character of it, and also with the prices, as too high even for, furniture of that character: but that after some delay, he did accept it, “ without stipulating for any alteration of price.”

The bill then further stated, that at the times of sending the furniture, the plaintiff also sent various articles of merchandize to be sold upon account of the plaintiff; and that at various times afterwards, up to October, 1824, he sent up to said Stephen large quantities of groceries which he undertook to dispose of for the pi an tiff; and of which an account was annexed to the bill, without any prices affixed.

The bill stated that Dr. Ferrand from time to time remitted sundry sums, which the plaintiff was ready to admit; but no particular credits were admitted. It further stated, that notwithstanding all the exertions of the plaintiff to bring about a settlement, the account of the mutual dealings was never adjusted; and that “ the said Stephen never once furnished any regular account of sales, of the large amount of articles sent to him for sale,” but occasionally, when they met, or by letter, promised to come to Newbern, and there make a settlement in full. The bill then stated three letters between those parties: one from the plaintiff, dated July 24th, 1829, in which he says: “From your last letter, I have been expecting you down from time to time until my patience is exhausted. Will you, upon the receipt of this, forward me the account of sales of the balance of the articles you had on hand when you were here last, together with the balance of your account in cash, or a check? The accounts between us have really remained unsettled longer than I could have wished.” Also one from Dr. Ferrand, dated October 5th, 1829, in which he says: “ your letter I received some time since, but have been unable to answer it, from great bodily indisposition. As to money, there is none here; and I should like to have a settlement with you, to know if I am in due to you; and for the purpose of doing so, I shall visit Newbern in the winter, where I expect to remain several months:” That on the 26th of April, 1830, the plaintiff again wrote to Dr. Ferrand as follows: “Your favour 5th of October, 1829, came to hand, in which you say that in the winter you will visit Newbern for the purpose of settling the accounts existing between us. As the winter has passed, and not hearing from you since on the subject, I am really at a loss to know how to account for it. Will you be so good, on the receipt of this, (as to send) the remaining aecount of sales, and say that I may draw on you for the balanee?”

The bill then stated the death of Dr. Ferrand in November, 1830, and the administration of the defendant on his estate; and it did' not appear that any thing more passed until the filing of the bill. The prayer was for the production of all letters between the parties, the invoices and accounts of sales of the various articles sent for sale; and that a proper account of all the mutual dealings between the plaintiff and Stephen L. Ferrand might be taken.

The answer stated that the defendant had no such knowledge of the transactions to which the bill related, as would justify him in admitting or denying any of the allegations, except to admit that there were dealings between the parties between the years 1819 and 1824, as he found among the intestate’s papers sundry receipts, drafts, &c., evidencing payments of money to complainant or to his order, which he begged leave thereafter to exhibit. All knowledge of the letters stated in the bill was also denied.

Upon the hearing of the cause it was referred to the Master to take an account of the matters of account stated in the pleadings. The master made his report to this term; and therein charged against the defendant,- the furniture at the price of $944 85, with the further sum of $1,133 60, for interest thereon for 20 years from the 30th of December, 1819 • — making, for principal and interest due therefor, the s.um of $2,078 45. The report also charged the further sum of $3,217 42, for sales of merchandize on account of the plaintiff, charged at prices proved to have been average prices at Newbern, about the periods these parcels were sent. The report credited the defendant with a commission of $160 84 on the sales, and with sundry payments between May, 1822, and May, 1827, so as to shew a balance due to the plaintiff upon the whole account, including the price of furniture and interest of $1,832 08; with which it charged the defendants.

An account was filed in the cause by the plaintiff, purporting to be the account between the plaintiff and Dr. Fer-rand, and to have been stated by a clerk of the plaintiff, now deceased; and shewing a balance on 2d of May, 1825, #2,295 921-2; in which there were the following entries: “This due on account sales rendered on the 14th May, 1822,” #701 49 1-2; and “ amount of sales of sundry articles made out this day, the balance due,” $2,187 51. This latter account of sales was annexed thereto in the hand writing of plaintiff’s deceased clerk, and shewed the sales at Salisbury at prices considerably lower than the articles were charged at in Newbern.

Besides the merchandize charged by the Master to the intestate, the plaintiff also claimed for other parcels, alleged to have been sent for sale on the plaintiff’s account; and to charge the defendant therewith, the plaintiff proved the receipts of sundry wagoners, expressed to be for the goods; and that they were to deliver them to Ferrand in Salisbury; and that the wagoners were now dead; and, in one instance, a witness further proved that he met one of those wagoners near Newbern, on his way up the country, and was told by him that he was loaded for Dr. Ferrand; and that the witness himself proceeded to Newbern, and thence to Salisbury, also with goods from the plaintiff to Ferrand; and that near Salisbury, he met the same wagoner, and was then told by him that he had delivered his load to Ferrand. In another instance, the plaintiff proved that, in the wagons, with part of the furniture, he sent, in March, 1820, a barrel of sugar and bag of coffee; which, as well as the furniture, Ferrand refused to receive; and that the wagoner then stored all his load with a merchant in Salisbury, on account of the plaintiff. The Master refused to charge those articles to the defendant, for want of evidence of the delivery to Ferrand.

The plaintiff excepted to the report, for those refusals of the Master, and insisted that the evidence was sufficient. The defendant excepted, because the Master included the furniture bill in the account; and because he allowed inter.est thereon.

Badger for the plaintiff.

D. jF. Caldwell and J II. Bryan for the defendant.

Ruffin, Chief Justice,

after stating the case as above, proceeded as follows: When this case was before the Court on ^le ^ea™§'> there was much reluctance felt to ordering an account. But as the answer admitted some dealings between t]le parties, of the kind stated in the bill, and the letter of Ferrand of the 5th of October, 1829, made it satisfactorily appear that an open account in respect of those dealings then subsisted between the parties, and contained a promise to settle it, we were obliged to put out df the plaintiff’s way the obstacle of the statute of limitations. Nevertheless, the circumstances under which this claim is preferred, renders its justice so extremely doubtful as to entitle it to no favour, and to impose on the plaintiff the burden of offering the clearest and most conclusive proof of every item, before he can be permitted to charge it against the defendant. The' length of time, indeed, is not such as to amount to a bar of itself; nor, as the account certainly remained unclosed as to something, can the length of time, connected with the other circumstances, authorise us wholly to deny the plaintiff the benefit of such evidence as does plainly establish the delivery of articles to the factor. But there is enough to render the Court jealous of the claim, and very cautious in not admitting any charge but upon evidence so clear, consistent and natural, as to amount to positive and almost conclusive proof Now, the receipts of the wagoners do not constitute evidence of that kind. It is not material that we should determine, in this case, whether those receipts are evidence between these parties, as acts done in the ordinary course of business by persons since dead; for, if they be competent, they can only raise a probability of the delivery; and their operation to that extent, is repelled by opposite probabilities that seem undeniable. The counsel for the plaintiff said, in the argument, that the inference from the receipts and deaths of the wagoners, at this period, was so fortified by the default of Ferrand in not rendering accounts, whereby the plaintiff could have seen whether the wagoners had or had not delivered their loads, that the Court ought to act on it and charge the goods, though it may not positively appear that they came to Ferrand’s possession. The argument adopted the statement of the bill in this particular, without adverting to the plaintiff’s letter of April, 1830, in which he asks for the “ remaining” account of sales; or to the document put in before the Master, whereby it appears that two accounts of sales were rendered. So far, therefore, from the fact, as actually existing, supporting the argument, it is opposed to it. The statement of the bill seems, indeed, to be incredible. That a merchant should sell goods to the value of nearly $1,000 to another person, and for three or four years afterwards forward to him large quantities of merchandize at different times, and take no security for the goods sold, nor get payment, nor get an acknowledgement for the consignments, nor any account of sales for more than ten years from the commencement of the transactions, is certainly possible. But it is so entirely against prudence and all experience, that a Court cannot act on the assumption of the truth of the story, without violating rational convictions to the contrary. There must have been divers statements between these parties; though probably, the more recent transactions remained open. At all events, it appears, probably without the design of the plaintiff, that some accounts were rendered — particularly, one in May, 1822, which was two years after the delivery of the furniture, on which only $701 49 1-2 was due. This account, and all others that may have been stated, and all material correspondence after May, 1825, the plaintiff has withheld; as he has also the original invoices of the furniture, which he promises in the bill to produce as evidence that the-prices charged by him were but a moderate advance on the cost. Unfairness of this sort furnishes presumptions that these accounts contain facts that would be destructive of the claim, as that the prices charged by the plaintiff were immoderate; or those at which the factor sold were much reduced; or that the furniture had been included in the account of May, 1822; or other facts that would reduce the amount of the demand, by shewing payments or otherwise. If those accounts were thus rendered, they would include the articles to which the wagoner’s receipts relate, and therefore be better evidence than the receipts, inasmuch as the former would be direct to the point on which the latter would afford but a remote and circumstantial inference, These considerations lead us to believe, that in decreeing at a^ ^01’ we run some hazard of working wrong; but, at all events, we cannot give him a decree for any thing which he does not establish by unequivocal and unsuspected evidence. The plaintiff’s first and second exceptions, which relate to the merchandize, of the delivery of which the receipts of the wagoners are the only evidence, are over-ruled.

The defendant’s first exception, that the Master has charged the furniture as an item in his account, must be over-ruled. The use of the furniture by Ferrand is proved by the witnesses, and also the selling price in this State, of such furniture. As an isolated transaction, the sale of the furniture would not make a case for the jurisdiction of this Court; and moreover, all remedy in respect of it would have been barred by the statute of limitation. But that part of the dealings necessarily formed but an item in account, when the parties proceeded in their other dealings; and, therefore, the letter of Ferrand repelled the effect of lapse of time as to this, as well as the other parts of this demand.

But if the plantiff, by connecting together those transactions of sale and agency, avoids the operation of the statute of limitation as to the articles sold, he must submit to the consequences of that connexion, by not claiming interest on that part of the account, unless he be entitled to claim it on the transactions between the parties as principal and factor. That this plaintiff ought not to have such interest, the Court deems clear from the circumstances to which we have already adverted. He keeps back the accounts rendered by the factor. He was as much to blame as the factor in not closing the dealings before such long delay had occurred. Upon the failure of the factor to settle, the plaintiff neglected to bring suit until the factor’s death, and very nearly three years from the last letter of the factor. The truth is, that it must be supposed the first payments were meant to be on account of the furniture, as it appears that the payments exceed the value of the other merchandize and the plaintiff would not have trusted a person with'his goods as agent, who neglected for more than five years to pay any thing on his own purchases. The balance of principal, money due on this account is therefore probably for the proceeds of the goods sold for the plaintiff, and under the circumstances of laches and unfairness on the part of the plaintiff in not producing the invoices to shewthe cost, and of want of diligence on the part of Ferrand, our opinion is that interest ought to be computed on that balance from suit brought, but not before. Wherefore, the defendant’s second exception is so far allowed; and the plaintiff’s third exception is disallowed.

Also, since the defendant has been charged by the master the highest prices, and the plaintiff has kept back the accounts of sales upon which the agreement- for compensation of the factor, at least as to the rate, would probably appear, we think the master did right in allowing Ferrand a commission. Consequently, the-plaintiff’s fourth and last exception is likewise over ruled. Master allowed $20 for report: Defendant to pay the costs.of suit.

Per Curiam. Decree accordingly..