Tennessee Brewing Co. v. Hendricks , 77 Miss. 491 ( 1899 )

Terral, J.,

delivered the opinion of the court.

The Tennessee Brewing Company, a corporation, on the 27th day of September, 1897, brought suit against W. IT. Hendricks for $230. The cause of action as set out in the declaration is an account for goods, wares, and merchandise sold by the plaintiff to the defendant in August, September, October, and November, 1893, amounting to $230, at the foot of which open account is written as follows:

“I herewith acknowledge that the above balance, two hundred and thirty dollars, is correct. W. IT. HeNdeioics.”

The defendant pleaded the general issue, and the statute of limitation of three years, and gave notice of an offset amounting to $250. To the statute of limitation of three years the plaintiff replied “that defendant had, in writing, acknowledged the correctness of the claim, and in writing had undertaken and promised to pay said amount within three years.”

It was proven for the plaintiff that the goods were sold and delivered to the defendant at the date of the several items thereof, and that on the 14th or 15th of November, 1893, the defendant signed the writing at the foot of the account above set out. This was all the evidence, whereupon the court excluded the plaintiff’s testimony and directed a verdict for the defendant, “because (as it is said) the account was barred by the statute of limitations, and the new promise was insufficient evidence of a new contract, because there was not express promise to pay the two hundred and thirty dollars.”

The acknowledgment of the debt was quite sufficient, we think, to constitute a new and binding promise, if the debt had been barred by the statute of limitations. Beasley v. Evans, 35 Miss., 192; Hart v. Boyt, 54 Miss., 547. But the debt had never been barred. It existed in the form of an open account for a short time prior to the 15th day of November, 1893, when the written acknowledgment of the amount was made and signed by the debtor, which constituted the debt an open account or an account stated, acknowledged in writing and signed by the debtor, and the statute of limitations applicable to that form of action is six years and not three.

The plaintiff, and not the defendant, was entitled to the peremptory instruction, according to the evidence before the court.

Reversed and remanded.