Dewees v. Bostwick Lumber & Manufacturing Co.

50 So. 865 | Miss. | 1909

Whiteieed, C. J.,

delivered the opinion of the court.

The court erred in not allowing the contents of the orders-, for lumber to be introduced in evidence: The appellant had stated that he had received these orders in writing, and that-they had been burned, and that he had made diligent search for the same, and could not find them. It was further testified, and not denied anywhere in the record, that the -lumber was sold on sixty days’ time; the lumber constituting the offset’ of the defendant.

This suit was instituted March 25, 1909; the summons was-served April 1, 1909; the offset was filed April I, 1§09. The account began October 21, 1905, and ended February 16, 1906. If, therefore, it was true, as testified, that the lumber was sold' on sixty days’ time, the. last items of the account would be due-sixty days after February 16, 1906; that is to say, on April 14, 1906. Under the three year statute of limitations, therefore, the one here pleaded, the account would not have been entirely-barred until April 14, 1909, and yet the court gave a peremptory instruction in this case to find for the plaintiff. It is difficult to understand why the court gave this peremptory instruction, unless it be, as seems probable, that the court understood the receipt, of date February 16, 1906, to be a receipt in full. That receipt, however, on its face, shows that it is a mere summary of payments, and not a receipt in full. One of the witnesses expressly testified it was not a receipt in full. But, if it was, on its face, a receipt in full, it was open to explanation. It appears, further, from the testimony, that Bos-tick, representing appellee, wrote a receipt in full, which Dewees refused to sign, and that Dewees then wrote and signed this receipt, the one offered in evidence. It was, of course, therefore, error to give the peremptory instruction on this state of case. Reversed and remanded.