Jayne v. Mickey , 55 Pa. 260 ( 1867 )

The opinion of the court was delivered, May 21st 1867, by

Woodward, C. J.

— In December 1856 Dr. Jayne & Son, who were druggists in the city of Philadelphia, furnished the defendant, a merchant in Perry county, an invoice of medicines amounting to $44, and took his receipt therefor, in which it was stipulated that the medicines were to be sold on agency, and accounted for at the annexed net wholesale prices; and then followed, as part of the receipt, a schedule of the medicines and prices. The defendant never rendered any account of the goods, and never returned them; but when he sold out his store in 1857 he boxed up what remained on hand and left them in the store.

This action was brought before a justice of the peace on the 23d January 1865, and on appeal the Statute of Limitations was pleaded. As more than six years had elapsed from the receipt of the goods to the institution of suit, and no acknowledgment of indebtedness was proved, the only question is whether the case falls within the exception mentioned in the Act of 27th March 1713, Purd. 655, limiting personal actions “ other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants.”

The learned judge treated the case as subject to the statute, upon the authority of Zacharias v. Zacharias, 11 Harris 455, but it seems to us to fall within the very terms of the exceptive clause of the statute.

If the parties are not to be regarded as merchants having mutual dealings and an open account, the evidence does clearly fix the defendant as a factor of the plaintiffs (agent is the generic term used in the receipt), and in that character the statute would not begin to run in his favor until he had settled an account of his agency, or at least until a demand for' an account had been made.

Neither an account nor a demand is alleged; then he has no right to set up the statute against his principal: Stiles v. Donaldson, 2 Grant 105 ; Manderville v. Wilson, 5 Cranch 15 ; and see the subject fully discussed in Judge Kennedy’s dissenting opinion in Thompson v. Hopper, 1 W. & S. 468.

The case upon which the learned judge below placed his ruling was not a case of merchants or their factors, but of trust, which, because enforceable by action at law, was held to be subject to ordinary legal defences.

The judgment is reversed, and judgment is now entered upon the case stated for the plaintiffs below for the sum of $44, with interest from the 23d of January 1865.