136 Ky. 456 | Ky. Ct. App. | 1910
Opinion of the Court by
— Affirming.
Samuel Brown, appellant’s intestate, died in March 1908, and this suit was brought against his administrator on the following account, which we set out in full for the purpose of illustrating the alleged errors complained of in the trial of the case:
Samuel Brown, deceased, in Account with Mrs. E. Osborne.
Oct. 10, 1900. To cash borrowed.....>........... $6 00
Jan. 10, 1901. To cash borrowed............... 12i 00
Sept. 1, 1903. To 32 months board and washing from January. 1, 1901, to September 1, 1903, at $15 per month..............................480 00
Sept. 1, 1904. To 2 months’ board and washing July and August............................... 30 00
Sept. 1, 1904. To 2 months’ board and washing, July and August..................t............. 30 00
Sept. 1, 1905. To 2 months’ board and washing, July and August................................... 30 00
*458 Credits
Nov. 10, 1902. By cash.............................150 00
Aug. 10, 1907. By 1 sow given to Mason......... 15 00
Aug. 15, 1907. By 1 cow given to Bessie........... 35 00
- 200 00
Balance due............................................$388 00
The answer controverted all the material averments of the petition, and further set up and relied on the five years’ statute of limitations as a bar to so much of the account as was due more than five years before the death of the intestate.
The deceased was a bachelor and quite an old man when he died, and Mrs. Osborne was his niece. There was evidence showing that in 1901 Mrs. Osborne loaned him $12, that he boarded at her house during the time mentioned in the account, and that the charges made were reasonable. It was also shown that the Mason and Bessie mentioned in the account were children of Mrs. Osborne, and that when he gave to them the sow and cow it was for the purpose of getting credit by their value on his board, and that when he paid the $150 credited on his account he said he wanted it to go as part of what he owed for board, and that on several occasions he said he owed Mrs. Osborne for board and wanted her paid. Virtually no evidence was introduced in opposition to the claim. The court excluded from the consideration of the jury the item of $6, and instructed them, in substance: (1) That if they believed that Mrs. Osborne loaned the intestate $12 and furnished him board and lodging and did his washing under an agreement by which she was to be compensated therefor, they should find for her the amount of the money loaned and the reasonable value of the board and washing, not exceeding the amount claimed. (2) That
When a person makes a payment upon an account, • a part of which is barred by limitation at the time the payment is made, and there is no direction made by him as to what items on the account the credit shall be applied to the extinguishment of, the law authorizes the application of it to the payment of the oldest items on the account, although these items, except for the payment, would be barred by the statute. This
Nor should any distinction be made between the effect of a payment upon an open account like this and a note. An open account is a debt, as well as a note; the -only distinction between the two being that one is a promise in writing signed by the debtor, while the other is not. An acknowledgment of the justice of an account will have the same effect as the acknowledgment of the justice of a note. Ditto v. Ditto, 4 Dana, 502; Trousdale v. Anderson, 9 Bush, 276. And so with reference to a promise to pay either a note or account.
But we think it proper at this point to say that we do not mean to hold that a payment on an account consisting of more than one item or an account
It is not necessary that we should give controlling importance to the acknowledgments of the deceased of his indebtedness for board, or his promise to pay
The evidence in our opinion was sufficient to support the petition that the intestate received from Mrs. .Osborne the services mentioned in her account, and that he agreed to pay her for them, and that the prices charged are reasonable. But, as to the item for $12 for money loaned, there is no evidence that the debtor intended to pay it, or that he acknowledged its justice, or that at the time he made the payment he knew of the existence of this item. Therefore to the extent of this item the judgment was erroneous. But this error is not sufficient to justify a reversal. Upon a return of the case the court will credit the judgment by $12.
"Wherefore, the judgment of the lower court is affirmed.