Rudolph Bros. v. Husat

90 Ohio Law. Abs. 1 | Ohio Ct. App. | 1961

Brown, P. J.

Plaintiff sold sugar to tbe defendant bakery-over a period of years. At each delivery a statement was presented containing tbe words “sold to Husat’s Bakery” and also containing tbe quantity and price of tbe sugar. Upon each slip at delivery an agent of tbe defendant wrote “Husat’s Bakery” and signed bis name.

Plaintiff claims that each slip constitutes a contract in writing making tbe statement a “speciality, or an agreement, contract or promise in writing” and bence subject to Section 2305.06, Revised Code, and actionable witbin fifteen years.

Defendant claims tbe signature on tbis particular statement is merely an acknowledgment of delivery and that Section 2305.07, Revised Code, applies. In tbe latter event action on most of tbis claim is barred, no longer actionable. Tbe trial court so beld and must be affirmed.

In order for an action to come witbin statutes of limitation governing actions upon a speciality or agreement, contract or promise in writing, tbe action must grow out of a written instrument wbicb acknowledges indebtedness, or promises to pay in sucb terms as to make supplemental evidence unnecessary. 53 C. J. S. p. 1017.

Tbe case of William Deering & Co. v. Miller, 9 O. C. C. (n. s.), 392, 29 Ohio Circuit Court Reports, 259, affirmed without opinion in 64 Ohio St., 548, cited by tbe appellant, applied tbe fifteen year statute of limitations to an account wbicb was stated by tbe vendor and acknowledged to be correct by tbe vendee in writing.

Ohio quite clearly bolds that running accounts are a series of implied contracts to wbicb tbe six year statute of limitations apply. Courson v. Courson, 19 Ohio St., 454; 34 Ohio Jurisprudence (2d), 552.

In tbe instant case tbe individual signed bills can not be considered to be an account stated. An account stated is an agreement between parties, express or implied, based upon an account balanced and rendered. These signed bills are in tbe nature of invoices, as listed in tbe petition they represent an action upon a running account and Courson v. Courson, 19 Ohio St., 454, applies.

In tbis case tbe signature of tbe company wbicb is sought to be charged appears to be attached with no clear intention of acknowledging the correctness of the bill, and the presumption, if any, is merely that the described merchandise has been delivered with an accompanying invoice. The signature acknowledges delivery and gives rise to an implied promise to pay which is subject to the limitation of Section 2305.07, Revised Code.

The judgment of the court of common pleas must therefore be affirmed.

Donahue and Griffith, JJ., concur.