The facts sufficiently appear in the opinion. In the court below plaintiff, Rickard, received judgment against "the defendant, Geach, for the sum of $433.93. Defendant made a motion for a new trial, and the motion was denied. Thereafter defendant appealed to this court from the said judgment and also the order denying him a new trial. Plaintiff alleged that "a mutual, open, current, running, and continuous account" existed between one A. J. Root and the defendant, the first item of which was on the 12th day of April, 1894, and the last on the 10th day of June, 1898; that on said account a balance of $433.93 remained due and unpaid; and that said account had, for a valuable consideration, *Page 448 been duly assigned by said Root to the plaintiff.
Defendant admits that the account between Root and himself was "open, mutual, running, and continuous," and he also admits the assignment, but he claims that the last item in said account was on the 2d day of December, 1895; and that, as the suit was not commenced until the 10th day of August, 1901. over four years had elapsed between the last item of the account and the commencement of the suit thereon, and consequently the action was barred by the statute of limitations.
Defendant's admission that the account between Root and himself was open, mutual, and current renders many of the cases cited in the briefs of counsel only remotely, if at all, applicable; for many of the said cases involved the question whether or not there had ever been a mutual, open, and current account between the parties.
In the case before us that point is admitted, and the question to be considered and determined is, when did the last item of the account take place? On the account as presented and claimed by the plaintiff were two items as follows: "August 14th, 1897, one shoe stand, $.70; June 10th, 1898, four sweep shoes, $17.60." The total of the last two items is $18.30, and on the account is a cash credit of $18.30 of the date of June 13, 1898. At the time that the item of 70 cents for the shoe stand was contracted and charged, to wit, 14th of August, 1897, there was certainly, under the admission of defendant, an open, mutual, and current account between defendant and Root, for nothing had up to that time occurred to affect the account; and the suit, having been commenced on the 10th day of August, 1901, was in time, provided that nothing subsequently occurred to change the status of things. Counsel for the defendant claims that a payment made had the effect of eliminating two items from the account, and thereby letting in the bar of the statute.
The facts of the said payment were as follows: After the 70 cents item for the shoe stand had been contracted, and the goods delivered, and the charge therefor made, the defendant wanted to get the "sweep shoes" mentioned, but Root declined to let him have them. Afterwards N. C. Prater told Root to let defendant have the "sweep shoes" and *Page 449 that he (Prater) would pay for them. Root then let defendant have the "sweep shoes," and charged them to defendant. Subsequently Root made a bill for the "sweep shoes," and included in the bill the item of the "shoe stand," 70 cents, and presented it to said Prater, and Prater paid it — the 70 cents item as well as the $17.60 item — thus making in all, as paid by Prater, $18.30 the amount of the shoe stand item and the sweep shoes item. Root gave Prater a receipt for the whole amount, $18.30, and subsequently entered a cash credit on his books in favor of defendant for the sum of $18.30, this entry being on the 13th day of June, 1899. Defendant claims that the payment by Prater of this bill of $18.30, including the 70 cents item, and taking a receipt therefor, eliminated from the account the 70 cents item, and thus the last item of the account took place on the 2d day of December, 1895, and therefore the whole account was barred under the statute of limitations of four years. When Root was asked why he put the 70 cents item into the bill that he presented to Prater, when Prater had not ordered or agreed to pay that item, but only the $17.60 item, he said, in substance, that it was for convenience in his bookkeeping; and he thought Prater could get the money out of the defendant better than he (Root) could; and that, if Prater had objected to the 70 cents item, he would have stricken it from the bill.
The question for decision is: Did the said payment and receipt, under the circumstances stated, so completely eliminate the 70 cents item from the account as to make the last item of said account to have taken place on the 2d day of December, 1895, and thus let in the bar of the statute of four years? We think it did not. Certainly, when Root put the 70 cents item on the bill that he presented to Prater, and received the money of the 70 cents item, and gave a receipt therefor, he (Root) did not intend that his acts should have such effect as counsel for defendant claims. Such a supposition would be contrary to human nature. No one could suppose that a man in his senses would, in order to collect an item of 70 cents, whether owed by Prater or not, intentionally let in the bar of the statute for a claim of $433.93. Prater, in making the payment, could not have such an intent, because *Page 450 he did not know anything about the matter. He did not know that the 70 cents item was not a part of what he had agreed to pay. And the defendant could not have had such an intent, because he had nothing to do with the placing of the 70 cents item on the Prater bill, or Prater's payment thereof or taking a receipt therefor. Defendant was not bound by Prater's act, for there is nothing in the testimony to show that defendant ever either ordered or ratified Prater's act in paying the 70 cents item.
Suppose the situation were reversed — that the balance of the account had been in favor of, instead of against, defendant, and defendant had sued Root, and Root had pleaded the statute of limitations, and supported his plea by his act in getting the payment of the 70 cents from Prater in the manner stated — could it be claimed with any showing of reason that his claim would have been successful? Certainly not. Then with similar, though perhaps not with equal reason, defendant's plea of the statute supported by such act must fail. If Root did wrong in putting the 70 cents item on the Prater bill when Prater had not ordered it, it was a wrong to Prater, but not to defendant. The trial judge, sitting without a jury, found as a matter of fact in the case that the payment of the 70 cents was a payment on the general account between Root and defendant, and not a payment of a special transaction, separate and apart from the open, mutual, and current account. Under the testimony in the case this question was a matter of fact to be determined by a jury, or, in case of a jury being waived, by the court sitting without a jury. The trial court found this fact against the respondent, and under the evidence we cannot say that the finding was not supported.
We conclude that the action was not barred by the statute of limitations, and it is ordered and adjudged that the judgment of the district court herein and its order denying a new trial be, and the same are, affirmed.
MASSEY, C. J.: I concur.
BELKNAP, J., was not present during the argument of the above case, and did not participate in the decision *Page 451