Hartness v. Penny

VAUGHN, Judge.

It was error to grant plaintiff’s motion for summary judgment.

Plaintiff’s theory is that the mailing of the account to defendant converted the account from an open account to an account stated. At this stage of the proceeding, this contention must fail for there is no showing when the account was mailed. It could have been mailed the day before Harris died. For that reason, there can be no presumption that Harris examined the account and accepted it as correct. We also note that the mere éntry showing a payment by Medicare on 6 May 1972, would not, standing alone and as a matter of law, constitute a payment by the debtor which would toll the statute of limitations.

The judgment granting plaintiff’s motion is reversed, and the case is remanded.

Reversed and remanded.

Judges Parker and Carson concur.