Bennett-Brewer Hardware Co. v. Wakeman , 160 La. 407 ( 1926 )

The sole inquiry here is whether the prescription of 3 years applicable to accounts may be orally interrupted. The answer to the question requires the interpretation of Act 78 of 1888, amending and re-enacting Civ. Code, art. 3538. Prior to its amendment, the codal article read, in part, as follows:

"The following actions are prescribed by three years: * * * That on all other open accounts.

"This prescription only ceases from the time there has been an account acknowledged, a note or bond given, or an action commenced."

The amendatory statute substituted for the words "all other open accounts" the words "all other accounts," and added the words "in writing" after the word "acknowledged."

Under the original article, the jurisprudence was that an account which had been orally acknowledged was no longer an open, but a closed, account, subject to the prescription of 10 years; so that by a mere oral acknowledgment the character of an obligation was changed from an indebtedness subject to only a 3 years' prescription to a personal debt prescribed by 10 years. In Block v. Papania, 121 La. 683, 46 So. 694, this court held that the act of 1888 was enacted to prevent that result; that the parol acknowledgment of an account only interrupts the 3 years' prescription, which thereupon begins to run anew, and that such acknowledgment has not the effect of shifting the prescription of 3 years to a prescription of 10 years. Our re-examination of the question has convinced us of the correctness of that opinion, and we adhere to the views therein expressed.

Civil Code, art. 3538, does not refer to or control the "interruption" of prescription. It only enumerates the various obligations to which the prescription of 3 years is applicable. The causes "interrupting" prescription acquirendi causa are set forth in articles 3516 to 3520, both inclusive, contained in paragraph 5, § 2, c. 3, tit. 23, of book 3 of the Code. Article 3520 provides:

"Prescription ceases likewise to run whenever thedebtor, or possessor, makes acknowledgment of theright of the person whose title they prescribe." (Writer's italics.)

The causes "interrupting" prescription liberandi causa are to be found in articles 3551 to 3555, both inclusive, contained in paragraph 6, § 3, same chapter, title, and book. Article 3551 reads, in part:

"The prescription releasing debts is interrupted byall such cases as interrupt the prescription by whichproperty is acquired, and which have been explained in the first" (second) "section of this chapter."

The acknowledgment required by the Code is an "acknowledgment of the right" (article 3520), i.e., of the "debt claimed" (article 3551). Shultz v. Houghton, 36 La. Ann. 407. And parol evidence is admissible to prove such acknowledgment. Bernstein v. Ricks, 21 La. Ann. 179; Ross v. Johnstone, 23 La. Ann. 109; McDaniel v. Lalanne, 28 La. Ann. 661; Boullt v. Sarpy, 30 La. Ann. 496; People's Bank v. Girod, 31 La. Ann. 592; Utz v. Utz, 34 La. Ann. 752. Under these codal provisions the mere verbal acknowledgment of an account or a verbal promise to pay the same is sufficient to interrupt the 3-year prescription running against it. It is reasonable to conclude, therefore, that the Legislature, in amending article 3538, did not intend to abrogate articles 3520 and 3551. Repeals by implication are not favored; and, if it is possible to reconcile statutes by any fair and reasonable construction, the courts will do so.

We think that the purpose of the act of 1888 was to limit the manner in which the character of an account subject to the prescription of 3 years should be changed so as to place it in the category of other personal debts subject to a prescription of 10 years. Under this interpretation of the statute articles 3520 and 3551 of the Code remain in full force and effect.

As was said in Block v. Papania, referred to supra:

"The present decision in no wise departs from that of Sleet v. Sleet, 109 La. 303, 33 So. 322."

For the reasons assigned, the rule nisi issued herein is discharged, and the judgment of the Court of Appeal is affirmed at the cost of the relator.

OVERTON, J., recused.