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Big D Service Co., Inc. v. Climatrol Industries, Inc. , 514 S.W.2d 148 ( 1974 )


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  • 514 S.W.2d 148 (1974)

    BIG D SERVICE COMPANY, INC., Appellant,
    v.
    CLIMATROL INDUSTRIES, INC., Appellee.

    No. 8239.

    Court of Civil Appeals of Texas, Texarkana.

    September 17, 1974.
    Rehearing Denied October 8, 1974.

    *149 Allen Melton, Dallas, for appellant.

    Goldberg & Alexander, Dallas, for appellee.

    CHADICK, Chief Justice.

    This is a suit on sworn account. The trial court entered judgment for the plaintiff. The judgment of the trial court is affirmed.

    Appellee, Climatrol Industries, Inc., sold appellant, Big D Service Company, Inc., three air conditioner compressors. The first two were sold January 25, 1968 and the third February 6, 1968. On December 10, 1970, more than two years but less than four years after the sales transactions, Climatrol instituted suit against Big D Service to recover an unpaid balance of $1,027.14 claimed to be due to it from Big D Service as a result of such sales. The action plead is a suit founded on an open account. There is no pleading or contention that the account concerns the trade of merchandise between merchant and merchant.

    The single issue in this appeal is whether the two year limitation period imposed by Vernon's Tex.Rev.Civ.Stat.Ann. art. 5526 Subdiv. 5 or the four year limitation period prescribed by Tex.Bus. & Commerce Code Sec. 2.725, V.T.C.A., is applicable to the action plead. The mentioned statute (Art. 5526 Subdiv. 5) requires suits on open accounts, except such mutual and current accounts as concerns the trade of merchandise between merchant and merchant, to be commenced within two years after a cause of action accrues while the mentioned Code Section (Sec. 2.725) requires suits for breach of any contract for sale to be commenced within four years after a cause of action has accrued. The issue presented by this appeal was considered and authoritatively settled in recent decisions. The four year limitation provision of Tex.Bus. & Commerce Code Sec. 2.725 governs the action here plead. Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App. Houston 14th District 1973, writ ref'd); Ideal Builders Hardware Company v. Cross Construction Company, Inc., 491 S.W.2d 228 (Tex.Civ. App. Houston 1st District 1973, no writ).

    The judgment of the trial court is affirmed.