Marks v. . Ballance ( 1893 )

It appeared that in May, 1891, the defendant purchased of plaintiffs, on sixty days time, a bill of goods to the amount of $95.98, and in October, 1891, he purchased, on sixty days time, a second bill of goods to the amount of $210.67, on which was credited a payment of $68, leaving a balance of $142.67. After both bills became due, to wit, on 3 January, 1893, the plaintiffs rendered a statement to defendant showing a balance of $238.65 to be due them, to which the defendant made no objection. Payment having been refused, the plaintiffs brought two actions — one on each of the above-mentioned bills. The defendant pleaded to the jurisdiction of the justice of the peace, and asked (29) that the action be dismissed.

Upon the above statement of facts it was agreed that if the judge should be of opinion that the justice of the peace had jurisdiction, then the judgment of the justice of the peace should be affirmed; otherwise, that the two actions should be dismissed.

The court being of opinion that the plaintiffs had the right to sue on each separately, and that the justice of the peace had jurisdiction, rendered judgment accordingly, and the defendant appealed from the judgment rendered in each case. We think that the matter involved in this appeal is determined inHawkins v. Long, 74 N.C. 781.

The plaintiffs have seen fit to consolidate the items of their account against the defendant, and to deduct therefrom the items of credit, and having rendered to the defendant a statement, in which they struck a balance and claimed that round sum as a debt, are bound thereby, unless the defendant has objected to such statement, and this he has not done. On the contrary, he has assented to the rendered account, impliedly, by his failure to object thereto, and expressly by his pleas in the two actions brought against him, thus making himself bound with the plaintiffs by this account stated. Upon the facts agreed, the two actions should have been dismissed.

Error.

Reversed.

Cited: Simpson v. Elwood, 114 N.C. 529; Copeland v. Tel. Co.,136 N.C. 13.

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