majority">Mr. Justice Trunkey

delivered the opinion of the court, January 24th 1881.

The contract is dated August 6th 1868, recites a transaction on which Edmond J. Verrier had received $10,000, leaving a balance due him of $6000, which sum is agreed to be paid by Florencio to Verrier, in August 1870.

*68As appears in the bill of' exceptions, in August 1868, Florencio rendered an account to Edmond, containing a number of items amounting to $8797.67. On February 2d 1869, he wrote to Edmond, as follows : “ Your letter of the 28th ult. is so characteristic, that I prefer giving it no reply. I place all the papers in the hands of Mr. Guillou, who will see Mr. Biddle. It would seem that you have forgotten, that on September 9th 1867, I paid you $600, on October 28th 1867, $680, August 5th 1868, your share of testamentary expenses, as per receipt of Esunbanio Pomental, $494; and August 12th 1868 for your various bills, &c., of Antonio’s ($56) $521, total $2295.” In the account, or letter, it is nowhere stated that the money was paid or received to apply on the contract. All the items were anterior to its date, except one, and that was six days posterior; the whole account was two years before the money became due on the contract, and the letter was written a year and a half before. There is no evidence of an agreement that the account should apply as payment. At most, it can only be inferred that the account was correct, because no objections were made within a reasonable time. An account rendered to a party indebted by his creditor, and not objected to in a reasonable time, is prima facie evidence against the party to whom it is rendered. The tone of the letter of February 2d, is not consonant with Florencio’s belief that Edmond had admitted the account correct, by silence, or otherwise! But, for the purposes of this ease, let it be conceded' that he did.

Florencio’s right of action existed at and before the time he rendered the account; it accrued more than six years before he filed the plea of set-off, and more than six years before this suit was commenced. Had he' brought a suit to recover the account, more than six years after the right had accrued, the statute would have been an effectual plea in bar; it is just as effectual when replied to the claim pleaded as set off. Sending the account to Edmond, did not suspend his right to bring suit, or the running of the Statute of Limitations. Mutual demands do not extinguish each other. The letter was written over six years prior to this suit.

Nothing in the correspondence between the counsel for the parties suspended the right of action, or amounted to a promise to pay the account, or constituted an agreement that it should apply as payment on the contract. The mere fact that Mr. Guillou mentioned that statements had been furnished to Edmond, to which Mr. Biddle made no reply, cannot prejudice the client. If it could there would be no safety in placing a claim in the hands of an attorney for collection. There is not a particle of testimony that Mr. Biddle had authority to admit the account, or that he knew anything about it; his business was to collect the money on the contract, and shortly after it became due, he demanded the whole.

The first demand was Mr Biddle’s letter of October 18th 1870. *69Honce, it is a mistake to say, that when the “ plaintiff first made demand for the payment of the $6000, a detailed statement of the several sums claimed to be of right deducted therefrom, was promptly presented.” There is no proof that the plaintiff demanded the $6000 before it became due. As already observed, the detailed statement was sent immediately after the date of the contract, and not a word therein, nor in the letter of February 2d 1869, shows that the account was claimed as a proper payment in reduction of the principal sum named in the bond. Florencio's last letter was not a request that his claim be applied on an obligation not then due; nor was it a statement that he would so apply it. lie awaited no answer, held the plaintiff at arms’ length, and gave notice that he placed the papers in the hands of his attorney. How could the plaintiff’s silence mislead him ? What word or act did the plaintiff utter or do, tending to induce belief that he would apply the account as payment? As we view the evidence, none whatever. We see no ground for application of the equitable principles of estoppel, so well stated in the opinion of the learned judge of the Common Pleas. We think it very clear, that he did nothing more than receive the account as sent, without returning any objection, and that only made it prima facie evidence against him. It is not pretended, that such an act by a debtor thereafter forever estops him from pleading the statute as a bar. In no sense can it operate as an estoppel. The statute runs from the date the account is rendered, if it be then due, as it would against any other simple contract debt. To avoid the statutory bar, the defendant contends, that the plaintiff’s silence was an admission of the claim of payment ; but no claim of payment on this contract was made; the claim was an account of payments to and for the plaintiff’ only. It is very clear that it is barred, whether the statute runs from the time he made such payments, or from the date he rendered the account.

In this case, there is no difficulty in entering judgment upon the verdict; for there is no evidence to warrant the jury allowing the set off against the bar of the statute. The verdict was subject to the point reserved, whether upon the evidence defendant was entitled in point of law to the set-off claimed by him. Had there been sufficient evidence for submission, this would not be a good reservation of a point: Ferguson v. Wright, 11 P. F. Smith 258; Wilson v. Steamboat Tuscarora, 1 Casey 317.

Judgment reversed, and judgment is now rendered on the verdict in favor of the plaintiff for $9163.92.

Citation profile

How this case has been treated — in progress