75 So. 113 | Miss. | 1917
delivered the opinion of the court.
Suit was instituted by the appellant, Gulfport Fertilizer Company, against J. A. McMurphy, appellee, in the circuit court, for four hundred and fifty-one dollars and fifty cents, balance claimed to be due on an open account.
Defendant in the court below pleaded the general issue and a special plea setting out the fact that he had
There -was some question raised in the pleadings, and also in the testimony, about these first two cars having been sold to the Harrison County Union Warehouse Company; but inasmuch as the defendant himself testified that he received these two cars under his contract with the plaintiff, it makes no difference as to their being originally billed or sold to the Harrison County Union Warehouse Company.
The testimony introduced by the plaintiff in the court helow was to the effect that'the entire account was correct, and that the defendant had settled for all of the. items except the goods shipped him in the first two cars, the- price of which was the amount Here sued for; that at the time of the settlement with the defendant, at which time defendant gave his personal notes for balance due plaintiff, the defendant was credited with all of the notes which he claims to have taken from customers who purchased the fertilizer contained in the first two cars, but, through an oversight, these two cars at that time were not charged to the defendant, and no settlement had ever been made as to them. The defendant himself was put upon the witness stand by the
The plea of the statute of limitations is an affirmative plea, and must be proved by the party setting it up. In this case it was incumbent upon the defendant, in order to take advantage of the plea, to show that the cause of action herein sued for, accrued against him more than three years prior to the service of summons upon him in this suit. The record does not show when this process was served upon defendant. In his testimony, defendant declined to testify to any certain time when he was to make settlement for these cars.
The cause of action did not accrue against him until the time elapsed within which it was his duty to have made this settlement. The defendant testified-that he had settled for these two cars with the general manager of the fertilizer' company, but failed to state the details of this settlement. A motion to exclude the testimony and for a peremptory instruction was sustained in the circuit court. Whether it was based upon the theory that the defendant had settled for these goods,
We think, however, that, under the testimony in this case, which is of rather a general character, these questions were controverted questions of fact, and should ; have been submitted to the jury for its determination.
Reversed and remanded.