93 Va. 64 | Va. | 1896
delivered the opinion of the court.
The only question in this case which it is necessary to decide is whether the account sued on is barred by the statute of limitations.
The record discloses the fact that there had been a statement of accounts between the parties in December, 1891,
We are satisfied that it was intended, by the statute quoted? and that it should be so construed, that no statement of account can have the effect of stopping the running of the statute of limitations upon the items of account which are included in the account stated, and which would otherwise be barred, unless there be a writing, signed by the party to be charged, or his agent, expressly promising to pay the balance thus ascertained to be due, or in which there is such an acknowledgment of the liability that a promise of payment may be inferred therefrom. If a ver
It is true that it has been held, in England, under the statute of 9 Geo. IV., that a statement of mutual accounts was sufficient to take a case out of the statute of limitations; but the English statute differs from ours in this, that by it pari payment was a sufficient acknowledgment of the debt to deprive the debtor of the benefit of the statute, and the courts treated the deduction of the debtor’s account from the creditor’s in their statement of mutual accounts, and the striking of a balance, as converting the debtor’s account, which was theretofore a set off, into a payment on the debt sued on, thus bringing an account stated within the provisions of the statute. But as our statute contains no such provisions, those cases and their reasoning are of no aid in construing it. Revisors’ Report of Code of 1849, p. 743, 744; 1 Rob. Prac. (New) 544, 545.
But in those states whose statutes are similiar to ours, and which contain no such provision as to part payment as is contained in the English statute referred to, the courts hold that a stated account does not affect the running of the statute.
In the case of Chace v. Trafford, 116 Mass. 529, under a statute similar to ours, it was held that an account stated, which is not supported by evidence of some writing signed by the party to be charged, will not prevent the running of the statute of limitations against the previously existing liabilities included therein.
To the same effect was the decision of the Supreme Court of Michigan, in the ease of Sperry v. Moore’s Estate, 42 Mich. 353. See, also, 1 Rob. Prac. (New) 544, 545; 2 Wood, Lim. §280, and Ang. Lim. §275.
At the time the account was stated which is sued on, every item in the original account of the appellant was barred by
The Circuit Court, we think, properly sustained the defence of the statute of limitations, and dismissed the bill, and its decree must be affirmed.
Affirmed.