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


gave Prater a receipt for the whole
amount, $3.50, and subsequently en-
tered a cash credit on his books in
favor of defendant for the sum of
$3.50. this entry being on the 18th
day of Ju.-2. 1899.
Defendant claims that the payment !;
by Prater of this bill of $3.50, includ- ,
ing the seventy cents item, and TAX I
ing a receipt therefor eliminated from
the account the seventy cents item,
and thus the last item of the account
took place on the2nd day OF December,
1895; and therefore the whole account
was barred under the statute OF limi-
tations of four years.
When Root was asked why be put
the seventy cents item into the bill
that he presented to Prater when Pra- !
ter had not ordered or agreed to pay |
that item, but only the $3.50 item,
he said in substance. that it was for
convenience in his bookkeeping; I'D
he thought Prater could get thhe mon
ey out of the defendant letter than he
IRooD could: and that if Pratter had
objected to the seventy cents item he
would have stricken it from the bill.
The question for decision is: Did
, the saidpayment and receipt, under
y the circumstances stated so complete
ly eliminate the seventy cents item
r n L.
: item of said account to have taken
place on the End day Of December,
:, 1895, and thus let III the bar OF the
|. statute Of four years?
If We think it did not. Certainly when
Root put theseventy cents item on the
d bill that he presented to Prater and
ID received the money OF the seventy
H. cents item and gave a receipt there
n for, he (RooD) did not intend tha'
his facts should have such effect a.
nt counsel for Geicniar- claims. Sucl
n a suppos:t.0E2 loud Dc col.raiy K
ii human nature. &c 200 could suppos,
no that a man IL - 5cESc5 would il OF
c- der to co:!cc, 81. te.2 ofseveaij ccr.s
NJ. whether ownee by Prater Or not, in
ut tentioTaily. let i'll the bar OF The STA
~ tute for 4 CAIN CT $433.93. Pirate
,d in making nc payment could no
no have had such an rtenr, because h
Of did not Know anything apout the ma
ba ter; he aid not know that the sevent
Of cents item was not a part of what i
had agreed 10 pay; and the defendar
or. could not have had such ali inter
%. because. he had nothing to do with
no the placing Of the seventy cents itel
of on the .rater bill or Prater's pa
Dli-. ment thereof or taking a receipt Their
in for.
not Defendant was not bound by Pr
zen. ter's act: for there is nothing in ii
er- testimony to show that defendant e
INT err either ordered or ratified Prater
be act in paying the seventy cents tier
did Suppose the situation We're reveI
axe ed: that the balance CT the accOu
had been in favor of instead OF again
ans defendant; and defendant had SUI
ms Root, and Root had pleaded the ST
tute OF limitations and supported h
plea by his act in getting the pa
90 nent Oh the seventy cents from II
Ter in the manner stated. could it
so claimed with any showing of reas
5 IS that his claim would have been S,
ash cessful? Certainly not Then wi
une similar. though perhaps not wi
equal, reason, defendants plea OF /
,nty statute supported by such act mt
act fail. Ii Root did wrong in putting t
Au- seventy cents item on the Prater
lder when Prater had not ordered it. it "
ia hut TO Inf
punt d2-7.
no II" ~ Judge sitting without
rred jury fount! as a matter of fact in
SUIT case that 10 rcc...nent of the seve,
10Th cents was payment on thegene
line. account between Root and defends
entity and not payment of a special ira
s OF action separate and apart from
open, mutual and current acco.
aims Under the testimony in the case /
fleet question was a matter of fact to
e &C determined by jury. or in case c
bar jury being waived by the court slit
without a jury. The trial court fo
we're this fact against the respondent;
under the evidence we cannot say t
the the finding was not supported.
and We conclude that the action
large not barred by the statute of |
want tations. and it is ordered and ad
ltion- ged ti.at the judgment of the
have trict Court herein and its order d.
told ing new trial be. and the same
weep affirmed
would concur:
!efen- Massey, C. ].
and Filed August Z, 1902,
'ubse- Eugene Howell.
r the Secretary of State ana ex-o1
= the CLERK of the Supreme Court
7 sew Belknap J. was not present du
said the argument of the above case
venty did not participate in the decision
item Filed with nrinter for nuhlics