W. T. Raleigh Co. v. Fortenberry , 138 Miss. 410 ( 1925 )

^* Headnote 1. Limitations of Actions, 25 Cyc., p. 1038. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] (After stating the facts as above). The three-year statute of limitations (section 3099, Code of 1906; section 2463, Hemingway's Code) provides as follows:

"Actions on an open account or stated account not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after."

Appellees contend, and the court below so held, this to be an action on an open account not acknowledged in writing signed by the debtor. While appellant's position is that the basis of the action is the guaranty contract, Exhibit B to the declaration, and that the account between appellant and Fortenberry, the principal, made Exhibit C. to the declaration, is not the basis of the action, but simply embodies part of the evidence necessary to make out a case under the guaranty contract, and therefore the six-year statute of limitations governs, and not the three-year statute. We think this question is settled in favor of appellant's contention by Vicksburg Waterworks Co. v. Y. M.V.R.R. Co., 102 Miss. 504, 59 So. 825. The promise to pay, which was the basis of that suit, was in writing and therefore provable by writing, but the amount to be paid was not in writing but rested in parol. The court said, touching this question, that the action was predicated on a written contract, and the three-year statute of limitations had no application, notwithstanding the written contract left the amount of water furnished to be ascertained by parol evidence. Although the following cases are not squarely in point, they go to sustain appellant's contention. Cock v.Abernathy, 77 Miss. 872, 28 So. 18; Masonic Benefit Ass'n v.Bank, 99 Miss. 610, 55 So. 408; Washington v. Soria,73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555.

Appellees, to sustain their position, rely principally onFoote v. Farmer, 71 Miss. 148, 14 So. 445, and Hembree v.Johnson, 119 Miss. 204, 80 So. 554. There is no conflict between those cases and Vicksburg Waterworks Co. v. Y. M.V.R.R. Co., supra. In the Foote-Farmer case, the court held that where a person secured an advance of money by giving an order for delivery of a county warrant for a certain amount, the cause of action upon its nondelivery was not based on such order as being in itself a promise to pay, or an acknowledgment in writing of an account due, but that the action was based on an unwritten contract and governed by the three-year statute of limitations (section 2670, Code of 1880). It was stated in the opinion in that case that in order to take the case out of the three-year statute it was necessary but the writing, promising to pay the indebtedness, should be in such terms "as to render any supplementary evidence unnecessary." The court in the use of that language, however, had no reference to the amount of indebtedness involved in that case. The question alone discussed and decided was whether the written order on which the suit was based was a sufficient promise to pay any amount whatever. The question whether, if the promise to pay had been sufficient, the amount to be paid could be fixed by parol evidence was not before the court nor discussed.

In the Hembree-Johnson case the court held that the recital in a deed of trust that it was given to secure a fixed sum of money, and in addition "any further indebtedness due the said Oscar Johnson that may accrue during the year by reason of advancement made to said T.L. Hembree and wife," was not a written promise by the grantors in the deed of trust to pay such open account. The court said in part:

"We have carefully considered the terms and phraseology of the deed of trust here involved, and we fail to find any promise to pay, or any acknowledgment of the indebtedness contained therein, except the eight hundred dollar note."

There was no sort of obligation or promise by the defendant in the writing involved in either one of those cases to pay the indebtedness sued for. Instead, in each of those cases, the writing relied upon simply recited a fact, not a promise.

Under the statute of frauds, a promise to answer for the debt of another need not describe with minute particularity such debt, such contracts like all others are to be read in the light of surrounding circumstances, and, where with their aid or the aid of other writing the debt may be identified with reasonable certainty, the memorandum will be deemed sufficient. 25 R.C.L., p. 649, section 280. If a writing be sufficient to meet the requirements of the statute of frauds, we think it is such a written contract as will be governed by the six-year statute of limitations.

We hold that the suit here is on the guaranty bond; that said bond is the basis and foundation of the recovery sought; that the bond, in explicit and unmistakable terms, obligated appellees to pay the indebtedness sued for. It is true that the bond itself does not name the amount for which the appellees are liable, but it points with certainty where and how that amount may be ascertained by parol testimony. It follows from these views that the judgment of the court below must be reversed.

Reversed and remanded.