Harrison v. Mason , 29 Ala. App. 64 ( 1939 )

It appears from the record in this case that plaintiff in the court below, appellee here, sold to her brother-in-law, W. F. Harrison, appellant, some household furniture in the year 1922, and that, from time to time, beginning in 1925, and ending in 1929, she loaned him money in various sums, aggregating, in all, five hundred dollars, the last loan of money being made in the year 1929. The lender did not keep any record of these loans, either as to the amounts of each respective loan, or of the dates upon which such loans were made.

In the year 1929, said appellee was at the home of appellant in Birmingham, and both parties having their memoranda before them reached an understanding as to the amount of the indebtedness from appellant to appellee and it was then verbally agreed between them that the total amount of the indebtedness of appellant to appellee was nine hundred dollars ($900), which was to be paid when appellant had finished paying up an indebtedness he then owed to Credit Union. Of what the above mentioned memoranda consisted the record does not disclose, nor does it show the month and day of the year 1929, when the verbal understanding and agreement was reached between appellee and appellant.

On the 27th day of January, 1933, appellee and appellant had a second meeting, or interview, and at this time no payments of any kind, or in any amount had been made by appellant upon his indebtedness to appellee, but he insisted, or requested that the amount of his indebtedness be reduced from the sum of $900, which amount they had agreed, verbally, was the correct sum of indebtedness to appellee, according to their mutual statement of the account in the year 1929. The record does not disclose why appellant insisted or requested that the amount of this indebtedness be reduced, but it does show that the last payment of any kind, and of any sum, made by appellant to appellee, on the various transactions between them, was made in the year 1922. In response to the insistence or request of appellant for a reduction of the amount of said indebtedness, appellee without any specific reason or cause for so doing, being given or shown, consented to a reduction of the indebtedness from $900.00 to seven hundred and thirty-five dollars ($735), and on said 27th day of January, 1933, the following paper writing was signed by each of them:

"Jan. 27, 1933.

"It is understood and agreed that Walter F. P. Harrison owes Addie Mae Mason Seven Hundred Thirty-Five Dollars ($735.00).

"In witness hereof we set our seals sign our names while being in good health and of sound mind.

"(Signed) W. F. P. Harrison

"Witness

"W. O. Vickery

"I agree that the above statement is true and correct.

"Addie Mae Mason."

The appellant continued to make default in paying his indebtedness to appellee up to the 29th day of October, 1937, when she brought her action in assumpsit on the common counts against appellant. The complaint contained six counts, none of which are involved upon this appeal except the third count, under which the plaintiff claimed of the defendant the sum of seven hundred and thirty-five dollars ($735) due on account stated between plaintiff and defendant on the 27th day of January, 1933, which sum of money, with the interest thereon, was alleged to be due and unpaid. Said complaint also alleged that said suit was brought on an account duly verified by affidavit.

The defendant filed his plea of the general issue to each count of the complaint, and along with said plea, he also filed his affidavit in which he alleged that the verified account filed by plaintiff was incorrect and baseless and that he disputed the whole account and denied any liability thereon.

In addition to the plea of the general issue the defendant filed special pleas, numbers 9, 10, 11, and 12. Pleas numbers 9, 10 and 11, respectively, interpose the statute of limitations of three, six and ten years (Code 1923, §§ 8943, 8944, 8947) in bar of the action, while plea number 12 avers that the contracts upon which the cause of action is based, are unenforcible and void under the statute of frauds (Code 1923, § 8034) in that said agreements were not in writing and were not to be performed within one year from the date thereof.

The plaintiff interposed demurrer to each of said special pleas, and the court below sustained said demurrers.

The only testimony offered upon the trial of the case was that of the plaintiff, which is set out in an agreed statement of facts, and also in a bill of exceptions, both of which are incorporated in the record here filed.

After the introduction of the testimony of the plaintiff, the defendant having declined to offer any testimony, the plaintiff requested the affirmative charge in writing, and the court gave this charge. The defendant made request for the affirmative charge, but the court declined to give it.

The statutes of limitations set out in the Code of 1923, § 8939 et seq. are not designed, nor do they extinguish the obligation of a debt or contract. These are Statutes of repose and simply deny to a plaintiff the right of recovery in a suit at law after the lapse of a specified time. In the instant case the Statute applicable is Section 8944, Subdiv. 5, of the Code of 1923.

Under the facts in this case there can be no doubt that the defendant was indebted to the plaintiff in the sum of $735. The collection of this debt was not pressed by the plaintiff, and under the facts the plaintiff had lost her right to enforce its collection prior to the 27th day of January, 1933; on which date, and after the running of the statute of limitations, the account between the parties was stated in writing, and signed by both parties.

The moral obligation to pay the debt was a sufficient legal consideration for the new promise to pay made after the bar of the statute was complete. 37 C.J. 1099 (569) 4. This text is supported by decisions from the United States Supreme Court, California, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, New York, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia, and Wisconsin. A list of the cases is collated in 37 C.J. 1099, Note 73.

In 37 C.J. 1115 (589) 6, it is stated as a general rule that "An admission of the debt by the debtor in a statement of account furnished to the creditor is sufficient. But it has been held that an account stated does not take the original debt out of the operation of the statute of limitations, although it creates a new cause of action against which limitations begin to run from the time the account is stated."

Finally, in 37 C.J. 1098 (566)3: "The general rule is that a new promise, whether made before or after the bar is complete, will avoid the operation of the statute of limitations," and that statement is supported by a long list of decisions of courts of last resort throughout the Union, headed by our own Supreme Court in St. John v. Garrow, 4 Port. 223, 29 Am. Dec. 280, where Hopkins, Judge, says: "An acknowledgment revives the debt, proof of the admission, supports the cause of action, stated in the declaration, and is proper, under a general replication to a plea of the statute. A cause of action is held to accrue, from the time an acknowledgment is made: the effect of one is, therefore the same, whether made before or after the bar of the statute was created. An acknowledgment to be followed by these effects, must be an unconditional one, that the debt is due, or the liability exists, when the acknowledgment is made, and not merely that the demand was originally just." To support the foregoing the learned justice cites numerous authorities.

In the instant case, there is an unqualified acknowledgment of the debt due from this defendant to this plaintiff. The declaration in the complaint is on that stated agreement. Under the decision hereinabove cited the statute of limitations began to run on January 27, 1933, and this suit having been brought within six years from that time, the plaintiff was entitled to recover and under the evidence was entitled to the general affirmative charge.

Assuming therefore that the debt, from defendant to plaintiff was an open account and was barred by the statute of limitations of three years, it still was an obligation, and when the parties stated the account between themselves on January 27, 1933, an obligation arose upon which a suit could be brought, and the statute began to run from that date.

We are not unmindful of Section 8964 of the Code of 1923, which provides: "No act, promise, or acknowledgment is sufficient to remove the bar to a suit created by the provisions of this chapter, or is evidence of a new and continuing contract, except a partial payment made upon the contract by the party sought to be charged before the bar is complete, or an unconditional promise in writing, signed by the party to be charged thereby." The statement signed by the parties stating the account between them on January 27, 1933, was certainly plain, and unequivocally admitted an indebtedness on a stated account, which thereby carried with it the implied promise to pay.

In the case of Ross v. Ross, 20 Ala. 105, the language used by the debtor to the creditor was as follows: "There are some notes and accounts between you and me * * * that are probably out of date, and I am willing to acknowledge them all in date, if you are," to which the creditor replied: "I always expected to do so." The Court held that the language used was an acknowledgment of the correctness of the debt, and a willingness to pay; and also, that this was an implied promise to pay, and was equivalent to an expressed promise to pay, taking the case out of the statute of limitations.

In the case of Townes et al. v. Ferguson, 20 Ala. 147, the language used by the debtor: "The account is a good one, but I cannot pay it before January, at which time I will be receiving money," etc. The Court held that this was an admission of the correctness of the demand and a willingness to pay.

In the case of Evans v. Carey, 29 Ala. 99, the complaint was that the plaintiff had paid a sum of money for defendant as his endorser in the bank; whereupon, defendant said, if plaintiff had paid anything on account for him that he would, and was willing, to pay it to the plaintiff. The Court held that the words amounted in law to an expressed promise to pay.

Judge Toulmin in writing the opinion in Re McGuire Hanlein, D.C., 132 F. 394, 396, recognizes the foregoing opinions as being in opposition to the decision there being rendered by him, but disposes of them in the following manner: "The decisions referred to must have been made before the present statute was enacted." This is not a fact, the Statute has been the same since the Code of 1852; whereas, the decisions above cited were rendered after that time.

Even in the McGuire v. Hanlein case, supra, the Judge writing the opinion says: "The promise may be expressed or implied, but it must be clear and explicit." Certainly, in the instant case it is clear and explicit that an account has been stated between the parties, and the implication arises that the amount due will be paid. This takes this obligation from within the statute.

The case of Chapman v. Barnes, 93 Ala. 433, 9 So. 589, upon which was based the decision of McGuire v. Hanlein, supra, was a suit on the common counts relying upon amounts due from the defendant to plaintiff against which there was interposed a plea of statute of limitations; while, in the instant case the suit is upon an account stated, which is a new obligation based upon a valuable consideration. Even in the Chapman v. Barnes case, supra, there is recognized the rule that, a subsequent promise to pay, made after the statute of limitations has effected a bar where unconditional in its terms and containing an admission of the indebtedness in a certain and definite sum removes the bar of the statute; but, that case is not authority. There, the suit was on the original obligation as to which the statute had effected a bar. Here, the suit is on a new obligation, having for a consideration the original debt. The obligation is clear and definite as to the amount due and raises the implication to pay.

The judgment is affirmed.

Affirmed.