
    W. D. Walter vs. Thomas C. Richardson.
    
      Action — Account Current — Payment.
    A factor will not be allowed to select one item from his account current and sue upon that alone. He should sue upon the whole account, and claim the balance due at the foot of it.
    Where a factor’s account current shpws that on a certain day there was a balance in his hands due his principal, all previous charges against the principal are extinguished, and if there is a balance due the factor at the foot of the account, it must arise from subsequent transactions, and they constitute his cause of action.
    BEFORE GLO'VER, J., AT SUMTER, SPRING TERM, 1858.
    Tbis was an action of assumpsit for one hundred and twenty-four dollars and thirty-four cents, for bagging and rope furnished by plaintiff, a factor, on the 7th September, 1855, with charges for freight, shipping and drayage. The charges were proved by a witness examined by commission.
    The defendant produced an account current which had been furnished him by plaintiff, as follows :
    
      Mr. T. 0. Richardson in Account, and Interest Account, with W. D. Walter, to 11th February, 1856.
    Hr.
    1855.
    May 5. To balance as account rendered, 891 25 Int. 9-6 47 80
    Sept. 7. “ invoice of rope and bagging, 124 34 “ 5-4 3 72
    Nov. 2. Your draft favor L. B. Hanks, 30 days, payable December 5, 200 00 “ 2-6 2 56
    Nov. 24. Cash paid your note in Bank Charleston, 857 00 “ 2-18 12 93 1856.
    Eeb. 11. To debit balance of interest, 11 83 2084 52 67 03
    
      1855. Or.
    
    June 23. By cash for your note at six mo’s, 857 00 Int. 7-10 38 13 Nov. 23. “ proceeds of forty bales cotton, 1106 04 “ 2-19 17 07 1856.
    Feb.'11. “ debit balance of interest, 11 83
    “ 11. “ balance, [ XXX XX XXXX ] 52 67 03 1856.
    Feb. 11. To balance to your debit, 121 48
    “ 2 1-2 for commission on balance, 3 03 124 51
    B. B. Charleston, S. C., Feb. 11,1856.
    W. D. WALTEE,
    pr. Atty. E. W. Walter.
    His Honor baying intimated to tbe plaintiff’s attorneys, tbat tbe proof of only some of tbe items in an account current, showing tbe true balance due, was insufficient to establish tbe plaintiff’s demand, a nonsuit was granted, with leave to move to set it aside.
    Tbe plaintiff appealed, and now moved this Court to set aside tbe nonsuit, on tbe ground:
    Because tbe account being clearly established, and there being no notice of discount or proof of payment, the plaintiff was entitled to a verdict.
    Moses, for appellant.
    Each item in an account is a separate cause of action, and where a plaintiff has several causes of action, be may waive all but one, and sue on tbat alone, though it may be tbat in a second action be could not recover tbe other charges. It is no objection to tbe first action, tbat be has not declared for every thing be had tbe right to declare for. Plaintiff here might have sued for tbe whole account, or be might have sued for any part of it. He has sued for but ■ one of tbe items, and if be recovers, tbe judgment may be a bar to a second action for tbe other items; but it is no objection to tbe action now brought, that be has not sued for every thing be might have sued for. He cited Oarson vs. Hill & Jones, 1 McM. 82; Bates vs. Quattle-lum, 4 McC. 265; 1 Wend. 487; 15 Johns. E. 289; 15 Johns. E.462; 16 Johns. E. 121; 16 Johns. E. 136 ; Seddon vs. Tutop, 7 T. E. 608 ; 20 Eng. O. L. E. 466. As to the cotton sold on 23d November, 1855, plaintiff had the right to apply the proceeds as he pleased, and he has applied them to the other items of the account current, leaving the charge for bagging and rope unpaid. The creditor has the right to apply a payment to any one of several demands, where no instructions to the contrary are given.
    
      Spain, Richardson, contra.
    The defence proceeds upon two grounds. (1.) That the item for bagging and rope furnished on the 7th September, was extinguished or paid on the 23d November, when jslaintiff received the proceeds of defendant’s cotton — a transaction which left the plaintiff indebted to defendant; and that plaintiff’s cause of action arises out of a subsequent transaction. (2.) That if plaintiff has the right to alter his account,, and apply the proceeds of the cotton to subsequent transactions, so as to leave the item for bagging and rope unpaid, still he cannot recover; for he should have sued upon the whole account and claimed the general balance. It would be a dangerous practice to allow a merchant or factor to select a single item from his account and sue upon that alone, merely because it is inconvenient for him to produce his books, and because he has a witness who can testify to that transaction from memory. It is not supposed that any wrong was intended in this case; but it is easy enough to conceive that under the cover of such a practice, the grossest frauds might be perpetrated. Where the law allows a party to keep books which are evidence for himself, the relation between him and his customer is to a certain extent, one of confidence. Tbe customer, when a demand is made upon bim, bas tbe right to call for tbe books, and to inspect bis account. Tbe books are evidence as much for tbe one party as for tbe other. There may be errors which tbe customer bas tbe right to have corrected; and whenever be is sued, be bas tbe right to require that tbe whole account shall be produced, and tbe books also, that he may point out errors and mistakes, if there be any. Now, if tbe merchant may sue upon one item, because the- amount happens to correspond with tbe amount due at the bottom of tbe account, be may sue upon any item, upon one which is ten times tbe amount of tbe general balance. There is nothing to prevent bim but bis own sense of what is right. If be may suppress his books in tbe one case, and resort to tbe testimony of a convenient witness to prove bis charge, be may do so in tbe other case, and thus establish a demand ten times tbe amount be is entitled to. What we insist upon is this, that a merchant claiming from bis customer a balance due upon account, and afterwards suing to recover it, must sue upon tbe whole account, and, if required, produce his books, or, what is equivalent, testimony that goes to tbe whole matter, -otherwise be stands in tbe position of one who suppresses evidence, and be who suppresses evidence which be is bound to produce, is as bad as be who destroys it.
   Tbe opinion of tbe Court was delivered by

Glover, J.

Tbe account current furnished by tbe plaintiff, shows that tbe true balance due by tbe defendant, ascertained from various debits and credits, including the rope and bagging, was not one hundred and twenty-four dollars and thirty-four cents. It is only by a singular coincidence that tbe price of tbe rope and bagging and tbe balance so nearly correspond; but if these were identical, tbe proof of one item of tbe account does not establish tbe others. Suppose the difference bad been greater, and tbe balance actually due by tbe defendant bad been much less than tbe price of tbe rope and bagging, would proof of tbe latter sbow tbe true dealings between tbe parties, and ascertain tbe correct indebtedness of tbe defendant? If tbe plaintiff’s cause of action bad been tbe draft in favor of L. B. Hanks, for two hundred dollars, which was subsequent in date to tbe rope and bagging, tbe proof of tbe payment of this draft would establish a liability far exceeding tbe amount claimed by the plaintiff; and tbe same result will follow tbe application of tbe rule contended for in tbe selection of any one item, tbe approximation to tbe true indebtedness depending upon tbe amount of tbe item selected.

Tbe question is not whether a party may sue for a distinct cause of action, but whether on the proof of one item of an account current, furnished by tbe plaintiff, and exhibiting tbe whole dealmgs between tbe parties, some prior and some subsequent in date to tbe one proved, be can recover tbe amount of that item, although it differs from tbe correct balance ascertained to be due. Tbe real cause of action is tbe account current, and until evidence is furnished of tbe debits and credits constituting it, tbe actual liability cannot be ascertained.

Another objection to tbe mode of proof insisted upon, will be manifest from an inspection of tbe debits and credits. On tbe 28d November, 1855 — more than two months after tbe rope and bagging were furnished — the plaintiff bad a balance in bis bands to tbe defendant’s credit, of more than seven hundred dollars. Consequently tbe demand now sued for was then paid, and tbe indebtedness of the defendant arose from other and subsequent liabilities.

The proof offered was, therefore, insufficient, and tbe motion to set aside tbe nonsuit is dismissed.

O’Neall, Wardlaw, Whitwer and Munro, JJ., concurred.

Motion dismissed.  