51 Miss. 344 | Miss. | 1875
delivered the opinion of the court.
1. The declaration was upon an account stated, due by the intestate of the plaintiff in error to J. Hines. The case was tried on the issues of nonassumpsit.
2. That the intestate, George Gorman, did not promise within three years before suit brought; to which the plaintiff replied that the claim sued on was an account stated.
3. A plea of payment.
The case has been presented under these general heads:
1. Whether the plaintiff sustains his claim by sufficient testimony.
2. Whether the account is an “ account stated,” and not barred by the limitation of three years.
The nature of an account stated is, that the parties consider the claims and strike a balance, after which the vouchers may be destroyed and the balance may not be disputed. Moy v. King, Bull. N. P., 120. It is an agreement by both parties that the items are true. The consideration of the promise is the stating of the account; therefore, such action will not be against an infant. Trueman v. Hurst, 1 T. R., 41, 42. It is not necessary to prove the items, for the action is not upon them, but upon the defendant’s consent to the balance ascertained. 2 Greenl. Ev., § 127. In Stebbins v. Niles, 25 Miss., 348, it is said: “A stated account properly exists only where accounts have been examined and the balance admitted as the true balance between the parties.” It is an agreement between both parties that the articles are true. Davis v. Tiernan & Co., 2 How. (Miss.), 804.
Let us turn, now, to the bill of exceptions, and see whether the testimony brings the case. The plaintiff introduced W. W. Brown, who says he went to see Maj. Gorman about the settlement of the account. He was very feeble — sick in bed; the account was produced; when the provisions and supplies were read over, Gorman laughed at the idea of Hines charging him for such things, as he was living in Gorman’s house. “ Gorman said Hines ought not to make him pay for the gates, as he had put them up as much for his own benefit as Gorman’s.” Gorman also said that he thought he had already settled for a portion of the account by credits on Hines’ notes. Gorman made no other objection to the account. Then witness stated: “ But he said that he did not believe he would owe Hines a cent upon 'a fair settlement.” Witness further said “ that it was agreed by Gorman and Hines that the matter might be arbitrated by Wormelle and himself. At the interview, Gorman produced a paper, purporting to be signed by Hines, dated December 6, 1867, reciting that he was about to leave the state, etc., and being indebted to George Gorman, he agreed to leave in his possession a certain crib of corn, containing about one hundred barrels, until he is paid, etc. Gorman also
After Hines returned from Texas, in the fall of 1868, Walter Gorman, a witness for the defendant, states that he heard an angry conversation between Hines and Maj. Gorman, wherein Gorman threatened to attach Hines’ horse for what he owed him, etc.
Gorman died January 1, 1869, having been very feeble for several months prior thereto.
The only comment that need be made upon this testimony is that it utterly fails to prove an account stated. Gorman insisted that, upon a fair settlement, nothing would be due Hines. That the “balance” might be ascertained, both parties consented that the matters of difference should be submitted to referees. The testimony leaves the dealings between the parties unadjusted. Indeed, it seems to us that a jury would be seriously perplexed to determine whether the testimony proved a large part of the articles, if the case had been left to them on the open itemized account.
It would follow that the claim sued upon would fall under the three years statute of limitations.
Suit was brought March 20,1872. The statute had run against the plaintiff’s cause of action a little over one year before Maj. Gorman’s death, deducting nine months immediately preceding the appointment of his" administrator, March 12, 1869, and more than the three years had elapsed before the suit was brought.
-The verdict is not supported by the case made before the jury, and ought to be set aside, and a new trial granted.
It is unnecessary to review the instructions.
Judgment reversed and a venire de novo awarded.
