
    George C. Pulver, Respondent, v. John Esselstyn, Appellant.
    (County Court, Columbia County,
    January, 1898.)
    1. Services — Farm worked on shares — Acts usually gratuitous — Express promise.
    Where a tenant, who has agreed- to work a farm on shares, claims for services of a nature usually rendered gratuitously by one in his situation he must show an express promise upon the part of the owner to pay him therefor, or must prove circumstances from which such a promise can be implied.
    
      
      2. Same — Statute of Limitations — Mutual accounts.
    The tenant cannot save bis demand from the bar of tbe Statute of Limitations, upon tbe ¿heory of an open mutual account existing between the parties, by proof of an account which does not show that the owner was indebted to him in any manner whatever, except for an unknown quantity of bay which the tenant marketed, as to which he testified that he, of bis own motion, gave the owner “ credit on account ” for his share land which might properly be deemed to have been a mere payment by the tenant of his debt to the owner.
    3. Same — Presumption that a payment is in full.
    A payment made by a debtor tó bis creditor will be presumed to be in full; and if the debtor has evidence to the contrary and fails to produce it, he must submit to the presumption, although unfavorable to his ease.
    Appeal from a judgment of the Justice’s Court.
    John L. Crandell, for appellant.
    G. K. Daley, for respondent.
   Longley, J.

The plaintiff brought his action upon, to say the least, a very stale demand.

Under an oral contract he worked the defendant’s farm oh shares from April, 1890, to April, 1891. In December, 1896, without, so -far as' the record shows, having ever made any previous demand, he sued- the defendant in Justice’s Court to recover $105.9'7, alleged to he ■ due him for services outside of his contract, rendered by him to defendant during tbe year he worked ■the farm, and for certain products of the farm,, which he claims were had by defendant in excess of his share. He recovered a judgment for the whole amount of his claim.

Upon the trial, plaintiff testified that, by his contract, he was to do all the work of the farm. The services for which he now, at this late day, charges, are mainly for cleaning out the stable in which his own and defendant’s horse were kept, occasionally feeding defendant’s horse, milking defendant’s cow sometimes when defendant was away ór sick, bringing defendant’s pigs, taking care of his hogs, and plowing and making his garden.

I think it may fairly he held, as claimed by the defendant, that all these services the plaintiff was hound to render under his contract. But if not, then I think he was bound to show that these small neighborly services were not intended by him nor accepted by 'defendant as mere acts of kindness for which no charge was to be made. I think, especially in an action so long delayed, he should have shown either an express agreement by the defendant to pay for them or some circumstance from which such an agreement might fairly be implied. I think he failed to show either. Eone of the services, so far as appears, were rendered upon defendant’s request. The law does not imply a promise to pay for every volunteered service, even when rendered with the knowledge of the beneficiary, but will rather assume, especially as between persons sustaining towards each other such relations as existed between these parties, that such services were intended to be gratuitous. Davidson v. Westchester G. L. Co., 99 N. Y. 558; Potter v. Carpenter, 76 id. 157.

The plaintiff, in order to save a large part of his claim from the Statute of Limitations, sought to establish, under section 386 of the Code of Civil Procedure, a mutual open account witjhi reciprocal demands subsisting between the parties throughout the entire year, from April, 1890, to April, 1891, or at least to a period beyond December 21, 1890; the latter date being six years prior to the commencement of his action.

Before the trial was commenced the plaintiff filed a bill of particulars of his claim. The bill of particulars shows nothing to defendant’s credit, and nothing to indicate any mutuality of account. . «

Eor does anything appear in the pleadings or testimony to' indicate that plaintiff was indebted to defendant in any sum whatever, unless possibly for some unknown quantity of hay which plaintiff testified that he purchased of defendant sometime in April, 1891, and “ credited to him on account.”

The plaintiff did testify that, during the year he was on the farm, he had some things of defendant, but he does not tell what they were, nor say .that he did not pay for them, or that, at the time the action was brought or tried, he was indebted to defendant on account of them. All thát appears in the case against plaintiff’s claim by way of mutuality of account is his own testimony that Ee was drawing hay all winter off the farm and selling it to Bristol Brothers at $12 a ton, that he gave defendant credit for Ms half, but has never had any accounting or settlement with the defendant on account of the proceeds of such sales, and the hay purchased by plaintiff of defendant in April, 1891. As plaintiff’s claim did not purport to be a balance of. account, and as. no credits appear uppn the plaintiff’s, bill of particulars,, and as he did not state, any way in which he had, ever otherwise credited deféndant with his share of the sales of hay, pr. with the. value of the-hay purchased in April, 1891, it is, to say the least, difficult to. see how the justice could render judgment for the full, amount of. plaintiff’s claim,, without allowing anything for the hay. How much money. plaintiff had received for the hay was a matter per culiarly within the plaintiff’s own knowledge,, and unless he saw • fit to disclose the amount he was owing to the defendant on account of it, or rather, how much his bill was, or should be, radduced by the amounts he' had credited to defendant on account of it, I think the presumption arises that it was ¡enough to extinguish the whole of plaintiff’s claim. . . ',

A payment made by a debtoy; to a creditor will be presumed ;to be in full, unless' the contrary appears. Boyd v. Weeks, 5 Hill, 395; New York Dry Dock Co. v. McIntosh, id. 290.

When a party has evidence which he can produce and^ fails to produce it, he must submit to the presumption that it is unfavom able to his case; . . , ■

In Wylde v. N. R. R. Co., 53 N. Y. 156, it was held that “Where one party to an action, knowing the truth of a mat-’ ter in controversy and having the evidence in his possession, omits 1 to speak, every inference warranted by the evidence offered will be indulged in against him.” But it is not necessary, to hold that there was a legal presumption here, binding upon the justice), which was -sufficient to- extinguish plaintiff’s entire claim. I am quite clear that plaintiff’s' indebtedness t.o defendant for. the latter’s share of the proceeds of sales of hay belonging in part to defendant, as claimed by plaintiff, was not enough to impress upon plaintiff’s account against defendant the character of a' mutual open -running account, within the meaning of the law, so as to enable the items of plaintiff’s account which accrued withini six years, if there were any, to draw after them the whole account, thus exempting the items outside of the six years from the operation of the Statute of Limitations.'

The hay sold to Bristol Brothers was not furnished by defendant to the plaintiff. The plaintiff had the right, under his contract, and it was Ms duty, to market the hay. That which came into Ms hands, therefore, belonging to- the defendant, was money, and tMs could only enter into the account between them as a payment by defendant upon any sum which he was owing to plaint,-j-rt. ’ This does not create a mutual account.

“ Payments do not enter into the account but are at once applied to reduce it.” 3 Wait’s L. & Pr. 794.

Of course a payment actually made within six years by a debtor on account of an existing claim may serve to keep it alive or even revive it if the statute has already run. But this is under another section of the Code (Code of Civil Procedure, § 395), and the payment must be made by the debtor under such circumstances as evidence his intention to recognize the debt, and acknowledge a balance remaining due upon it. Crow v. Gleason, 57 N. Y. St. Repr. 583; Adams v. Olin, 140 N. Y. 150; Crow v. Gleason, 141 id. 493.

A revival cannot be accomplished by the act of the creditor alone. Camp v. Smith, 16 N. Y. St. Repr. 268.

As I have said, I do not think the crediting of the proceeds of the hay by plaintiff without any authority from defendant, as money paid by defendant on account, made a mutual open account, with reciprocal demands between the parties]

I think that all the items of plaintiff’s bill of particulars which were for goods furnished or services rendered prior to December 20, 1890, were outlawed and barred by the Statute of Limitations.

The items of plaintiff’s bill of particulars which, as therein entered, appeared to have accrued within six years prior to the commencement of the action, are thus dated, “ 1891, 397 lbs. of hay out of hop-house, $12 per ton, $1.19. Eeb. 1, 500 lbs. of hay out of hop-house, $12 per ton, $3. 7 bushels of corn out of cornr

house, .60, $4.20. Taking care of his hogs, $5. Milking his cows, $2. Taking care of his horse lli months, $25. Use of stable and wagon-house, $10.”

As to these seven items the testimony shows that the stable and wagon-house were reserved to the use of defendant, in the contract. He was, therefore, not liable for their use. (The entry itself shows that the charge for taking care of defendant’s horse covered the whole time plaintiff was on the farm. And the plaintiff testified that he milked the defendant’s cows “ through the summer.” So that these items, although so entered upon the bill of particulars as to appear to have accrued subsequent to December, 1890, were in fact for services mainly, and as to the cow wholly, rendered prior to that date. But as to both these items and also the charge of $5 for taking care of defendant’s hogs, I have above expressed the opinion, that plaintiff failed .to show that defendant was legally indebtéd to him on account of" either, for the reason that even if they were not included in the contract, which required the defendant to do all the work of the farm, they were not rendered upon plaintiff’s request, nor under such, circumstances as creates an implied promise .to pay for them.

There remain the-items of $4.19 for hay and $4.20 for corn. In all $8.39, for Which, at the túne of the trial, defendant appears to have been, indebted to the plaintiff. I think it cannot be called a violent presumption to assume that if plaintiff was drawing off hay all winter and selling it at $12 p;er ton, as he testifies, and has never accounted for the proceeds, that he must at least be owing- the defendant as much as $8.39. If this presumption does the plaintiff any injustice he has no one but himself to blame, for he knew, or certainly should have known, how much money he had in his. hands belonging to defendant, and he cannot complain if the fact that he admitted he had some, but failed to1 disclose' how much, iq construed most strongly against him. Wylde v. N. R. R. Co., supra.

Having shown payments upon the amount of his claim, it was his duty to show that there still remained a balance due him, and how much that balance was. Having failed to do this there was no legal basis for a judgment in his favor. Fox v. Decker, 3 E. D. Smith, 150.

I think the judgment must he reversed.

judgment reversed, with costs.  