21 S.D. 314 | S.D. | 1907
This action was commenced. on the 17th day of August, 1903, to recover the amount of the following items of account, less $22 paid and credited thereon September 7, 1896:
*316 1896 Jul. 28. To one Harvester King Pleader ........$127.00
Jul. 29. Setting up header ..................... 3.00
Dec. 22. Expense of- man and team trying to collect
George B. Daley’s note, at request of E.
E. McCoy ........................ 2.50
1897 May 3. One C. 486 .......................... .50
Aug. 18. One 1460 ........................... 1.00
One 1062 ........................... .60
$134.60
The only point saved for review and relied upon to reverse respondent’s judgment for all that he claimed in the complaint is that the entire amount, except the two< items charged August 18, 1897, was barred by the six-year statutory limitation. As respondent testified in effect that he sold the machinery on a cash basis, and refused to take a note in settlement therefor and sent a bill with repairs when shipped, there is no merit in the contention of his counsel that the statute has not run because indefinite credit was extended and payment has not been demanded. That the account is mutual, open, and current, showing reciprocal demands between the parties, and that the cause of action did not accrue before the date of the last two items of $1.60, is the theory upon which the jury was thus instructed: “Some testimony has been given in this case in regard to the statute of limitations — that is, whether the account of the plaintiff is outlawed or not — and the court instructs the-jury in this connection that the court is of the opinion, as a matter of law, from the undisputed evidence in this case, that the account is not outlawed, or, as the lawyers say, it is not barred by the statute of limitations.”
It being conceded that the partial payment of $22 was made about seven years prior to the commencement of the action, and that respondent was entitled to recover for the last two. items because the action was commenced one day before the expiration of six years from their date, the controlling question of law to' be determined is-whether the purchase at that time operated to bring all the other items within the six-year limitation by virtue of the following statutory provision: “In an action brought to recover
It follows that respondent was only entitled to recover for the items -aggregating $1.60 dated August 18, 1897, and for which appellant consented to judgment. All previous items were barred when the action was commenced and the judgment appealed from is reversed.