The opinion of the court was delivered byo
Bennett, J.We see no reason why, from the facts reported, the plaintiff may not recover, in this form of action, for the amount of the monies paid by the plaintiff for the taxes which he had in his hands, for collection, against the intestate. There were all the time mutual and running accounts between the parties, and the case finds that it was understood between them that the taxes should be adjusted and settled with their other accounts, as matters of mutual deal and account.
We think the defense set up under the statute of limitations can not succeed. In March, 1843, the parties commenced. a settlement of their dealings, and found the amount of Hall’s claims against the plaintiff to be $212.21, and, not having time to complete the settlement, the plaintiff gave the intestate his due bill for that sum, to apply on settlement, and it was then agreed that “ neither party would take any advantage of the statute of limitations having run, or being about to run upon the other’s claims, but would thereafter settle without any objection on that account.” It is evident, from the facts reported, which may be referred to, that this agreement was kept upon foot by the parties, at least down to the spring of 1851, when Hall said to the plaintiff’s son that he and the plaintiff had a settlement to make, and that there were some things outlawed on both sides, but they had agreed to take no ad*651vantage of the statute of limitations, and that he was ready to settle at any time. The notes in question are included in the term claims, and were clearly within the agreement of the parties, excepting them from the effect of the statute of limitations. The opinion that Hall may have expressed that he should not be owing the plaintiff upon a final settlement, cannot have any effect upon the agreement to waive the statute.
We think the item of $15.43 in the plaintiff’s account, should be allowed him, notwithstanding the same sum was included in the intestate’s account, and went to make up apart of the $212.21, for which the due-bill was given. This item, of $15.43 was for carding wool and dressing cloth, done by one Wheeler, in the employ of Hall; but it is found that the plaintiff, from time to time, let Wheeler have produce, expecting that it would go in payment of this account, and charged the same to Wheeler.
When the parties suspended their settlement, the auditor finds that the plaintiff objected to this item in Hall’s account, upon the ground that he had paid it in produce to Wheeler, and the settlement was delayed to ascertain how that fact was. In doing this, there was an implied admission by Hall that Wheeler had the right to receive pay, and the plaintiff might transfer his account against Wheeler to his account against Hall. At the time the due-bill was given, this charge of $15.43 was a-subsisting item in Hall’s account, and the charge of the plaintiff, though made to Wheeler, was a subsisting account, to be applied in payment, and both were kept upon foot, subject to a future application. The effect of the finding of the auditors was not to contradict or vary the operation of the due-bill, but to set up a subsisting-item in the plaintiff’s account, which would, in effect, balance so much of Hall’s account embodied in the due-bill. This being the effect of the finding of the auditor, I see no reason why we should not give it full operation.
Judgment affirmed.