Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-08-09

In the court below plaintiff Rick
ard received Judgment against the de-
PENDANT Greach for the sum OF s43593
Defendant made motion for new
trial and the motion was denied.
Thereafter defendant appealed to
this court from the said judgment and
also the order denying him new
trial.
Plaintiff alleged that mutual,
open, current, running and continuous
account existed between one A. J.
Root and the defendant. the first item
of which was on the 18th day OF April
1894, and the last on the 10th day of
June. 1898; that on said account
balance of s433.a3 remained due and
unpaid; and that said account had
for a valuable consideration been du-
Iy assigned by said Root to the plain
tiff.
Defendant admits that the account
between Root and himself was open,
mutual. running and continuous: and
he also admits the asst gnment, but he
count was on the 2nd day of Deem
Der, 1895 and that as the suit was not
commenced until the 10th day of Au-
gust, 1901, that over four years had
elapsed between the last item Oh the
account and the commencement OF
the suit thereon. and consequently the
action was barred by the statute OF
limitations.
DEFENDANTS admission that the &C
count between Root and himself was
open, mutual and current renders ma
ny OF the cases cited in the briefs OF
counsel only remotely. if at all. appli
cable: for many of the said cases in
vOlved the question whether or not
there had ever been a mutual, oper
and current account between the par
ties. In the case before us that point
is admitted. and the question to be
considerd and determined is when die
the last item Of the account take
place.
On the account as presented an
claimed by the plaintiff were two item
as follows:
August 18th, 1897, one shoe
stand I
June 10th. 1898. four sweep
shoes Il b
The total OF the last two items
$3.50; and on the account is cas-
credit OF $3.50 OF the date of Jun
18th. 1898
At the time that the item of sevent
cents for theshoe stand was contrac
ed and charged. to-wit: 14th Of Al
gust, 1897, there was certainly undo
the admission OF defendant a
open, mutual and current accour
between defendant and Root; for n
thing up to that time had occurre
to affect the account and the SUI
having been commenced on the1O'
day of August, 1901 was in tim
provided that nothing subsequent
occurred to change the status
things.
Counsel for the defendant CLAIM
that a payment made had the effe
of eliminating two items from the 6
count and thereby letting in tie b
of the statute.
The facts of the said payment we
as follows:
After the seventy cents item for t
shoe stand had been contracted a
the goods delivered and the char
therefore made. the defendant wa
ed to get the sweep shoes menti'
ed but Root declined to let him ha
them. Afterwards n. c. Prater t.
Root to let defendant have the "sWe
Shoes" and that he tPrater) wO1
pay for them. Root then letlet def
dant have the sweep shoes q
charged them to defendant. Sui
quently Root made a bill for
"sweep shoes" and included in
bill the item Of the "shoe stand s
enty cents. and presented it to S
Prater and Prater paid it. the seve
cents item as we'll as the$17.6O it
thus making in all as paid by Prs
$3.50 the amount of the shoe SITS