Albert F. Albro, Appellant, v. John G. Figuera, Respondent

Albert F. Albro, Appellant, v. John G. Figuera, Respondent. (Argued February 11, 1875 ; decided February 23, 1875.) This was an action to recover a balance alleged to be due-on account for goods sold and delivered. The allegations of the complaint were general; a bill of particulars was subsequently served. Upon the trial, the referee, of his own motion, ordered the complaint to be amended by affixing thereto the bill of particulars, pleading the delivery of the items mentioned, and admitting the payments-therein specified. The plaintiff made an amended complaint as required. The answer admitted that “ plaintiff sold and delivered to said defendant a large quantity of merchandise, and that he paid therefor the several sums stated in the bill of items of credits, annexed to the amended complaint,” but denied that any balance was due, and denied every allegation, except as admitted. Plaintiff’s counsel claimed that no-proof of sale and delivery was necessary, as it was not put at issue by the answer. Held, that the answer sufficed to put at issue, and to require proof from plaintiff as to the items of the account, the times when the goods were sold, and the prices; also, that the amendment required by the referee was immaterial, and within the power of the referee to direct. It appeared that the account was not a running account, but that the sales were made from time to time, separate bills being rendered for sales at each time, and payments made to apply specifically on particular bills. Held, that the referee rightly held the bills sold more, than six years prior to the commencement of the suit, and upon which no payment within that time had been made, were barred by the statute of limitations. Other questions were disposed of on the facts. R. S. Guernsey for the appellant. Horace W. Fowler for the respondent. [MAJORITY — Miller, J.,] Miller, J., reads for affirmance. All concur; except Church, Ch. J., and Andrews, J., not voting. Judgment affirmed.