A man. who for petty spite sues his neighbor for a few dollars balance of an open account, without a demand of payment, is not entitled to great consideration; nevertheless, the plain rules of law cannot be ignored in order to beat him.
The defendants’ bill of particulars shows that they owed the plaintiff four dollars and nineteen cents. A part of the account, three dollars and eighty-one cents, however, was for milk delivered from the plaintiff’s farm to the defendants’ factory in September, 1911, and, according to the agreement of the parties, milk was not to be credited until the end of the *363month. Omitting this item the plaintiff was clearly entitled to a judgment of thirty-eight cents.
By section 386 of the Code of Civil Procedure, entitled “ when cause of action accrues on a current account,” it is provided that in an action brought to recover a balance due upon such an account, the cause of action is deemed to have accrued, from the time of the last item proved in the account on either side.This announces the rule as it has always been understood. The account in this case was for merchandise sold. The only possible question about a term of credit is as to the milk which was to be credited at the end of each month.
At the time the action was brought, upon the theory most favorable to the defendants, there was thirty-eight cents due to the plaintiff. Their bill of particulars having credited the three dollars and eighty-one cents for September milk that may properly be added.
The judgment should be modified by reducing the recovery of the plaintiff to four dollars and nineteen cents, and as so modified affirmed, without costs.
Lyon, J., concurred.
Judgment of the County Court reversed, with costs, and judgment of the Justice’s Court affirmed.