Taylor v. De Soto Lumber Co., 102 So. 260

102 So. 260 | Miss. | 1924

Lead Opinion

Smith, C. J.,

delivered the opinion of the court.

The appellee sued the appellant for goods sold and delivered. At the close of the evidence the court below directed the jury to return a verdict for the appellee, and, from a judgment in accordance with the verdict so returned the appellant has brought the case to this court.

In addition to the general issue the appellant pleaded the three-year statute of limitations (section 3099, Code of 1906; Hemingway’s Code,, section 2463), on which plea the appellee joined issue. To maintain the issue on its part, the appellant introduced one of its members who stated in substance that he knew of his own knowledge that each item of the account sued on had been sold and delivered to the appellant. That one Eberhard, who it is admitted had entered into a contract to construct a house for the appellant at Crenshaw, Miss., at a stipulated price, under which contract he was to furnish all of the material therefor, purchased certain building material which constitutes the account sued on ■from the appellee at Memphis, Tenn., and directed it to charge and ship same to Taylor at Crenshaw, which accordingly was done. That on May 1, 1920, the appellee received,the following letter from Taylor:

“My new house is just about completed, and the time is growing- near for a settlement between Mr. A. Eberhard and us. Will you please mail us at once an itemized statement of our account to date in full showing every transaction—and on receipt of same we will mail you check to close the account. In the future please ship everything bought by Mr. Eberhard collect, so that we can finish as we go along.”

In response to this letter the witness prepared a statement of which the account sued on is a duplicate, and mailed it to Taylor, showing a balance due on the account of one thousand six hundred seven dollars and twenty-eight cents. A few days thereafter the appellant received the following letter from Tavlor dated May 6, 1920: ’

“Enclosed find check for one thousand dollars, part payment on account. Will take care of balance a little later. ’ ’

. The check referred to in this letter appears as a credit on the account sued on. There also appears thereon two other credits, one for freight, January 5, 1920, eighty-eight dollars and ninety-seven cents, and another for cash, January 9, 1920, seven hundred ninety-two dollars and seventy-five cents, but by whom these two payments were made does not appear. When suit was filed a large part of the account was barred by the three-year statute of limitations if the same is applicable thereto.

Eberhard did not testify, but the appellant himself did, and stated that he did hot authorize Eberhard to purchase any material from the appellee for liis, the appellant’s, account, and that he did not know that Eberhard had done so until demand for the payment thereof was made on him by the appellee. He also stated that he did not authorize Eberhard to have the lumber shipped to him, and did not remember whether it was billed to him or not; that Eberhard unloaded it from the railroad cars in which it was shipped and that he, the appellant, did not pay the freight thereon, and did not know whether the material was received by Eberhard, or whether it was used by him in constructing the house. He also stated that the two letters written by him and the remittance contained in the second were at the request of Eberhard, and that he did not thereby intend to assume the payment of the account, or to ratify Eberhard’s action in having- the material charg-ed to him.

On this evidence it was for the jury to say whether or not the appellee authorized or ratified Eberhard’s purchase of the material for his (the appellant’s) account. Consequently the peremptory instruction requested by 'the appellee should not have been given.

The greater part of the account sued on was barred by the three-year statute of limitations, and the appellee is not entitled to recover therefor without reference to the authority vel non of Eberhard in purchasing the same on his credit. The contention of the appellee in this connection is that the second of the two letters hereinbefore referred to written to it by the appellant contains an acknowledgment of and a promise in writing to pay the account sued on, and consequently the case is taken out of the operation of the three-year statute of limitations. Section 3118, Code of 1906; Hemingway’s Code, section 2482.

An acknowledgment or promise that will save the bar of the statute of limitations must identify the debt and acknowledge or promise to pay a definite amount (Mask v. Philler, 32 Miss. 237; Trustees of Canton Female Academy v. Gilman, 55 Miss. 148; Eckford v. Evans, 56 Miss. 18; Fletcher v. Gillan, 62 Miss. 8; Allen v. Hillman, 69 Miss. 225, 13 So. 871; Philp v. Hicks, 112 Miss. 581, 73 So. 610), unless the debt is evidenced by a written instrument from which the- amount due thereon can be ascertained by calculation, in which event the amount due need not be stated in the acknowledgment or new promise. Hart v. Boyt, 54 Miss. 547; Heflin v. Kinard, 67 Miss. 522, 7 So. 493. To allow the debt and amount due thereon “to be proved by parol would produce the evil the statute requiring an acknowledgment or promise in writing to save the bar of the statute was intended to prevent.” Trustees of Canton Female Academy v. Gilman, 55 Miss. 148, quoted with approval in Heflin v. Kinard, 67 Miss. 522, 7 So. 493. That this would be the effect of allowing such proof to be made by parol is made manifest here, for in order to recover the appellee was compelled to and did prove by parol both the account sued on and the balance due thereon. It is true that the second letter was written after the statement of the account had been sent to the appellant in response to his request therefor, but what that statement contained, to and from whom due, the items thereof, and the amount due thereon, rest wholly in parol.

The sufficiency of the letter here in question as an acknowledgment or a new promise does not really arise on this record, for the reason that the appellee simply joined issue on the plea of the statute of limitations and did not reply thereto setting up an acknowledgment or new promise in writing. The case has been argued by counsel, however, as if an acknowledgment or new promise is presented by the pleadings, and we had decided it accordingly.

Reversed and remanded.

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Dissenting Opinion

Anderson, J.

I dissent from the majority opinion. There are two lines of authorities. One holds to the doctrine that there must be a positive identification in the writing of the debt referred to, that it must name the amount of the debt. Another line of authorities holds to the doctrine that the identification of the debt may be by parol evidence provided the writing itself points with certainty to the matter aliunde. 17 Ruling-Case Law, p. 905, section 264. Mississippi has aligned herself with the latter. Hart v. Boyt, 54 Miss. 547; Heflin v. Kinard, 67 Miss. 522, 7 So. 493; Yarbrough v. Gilland, 77 Miss. 139, 24 So. 170; Stewart v. Forman, 90 Miss. 85, 43 So. 67; Edward Thompson Co, v. Foy, 115 Miss. 848, 76 So. 685.

The balance due by appellant when he wrote the last letter was agreed upon, and the agreement was embodied in the two letters in'connection with the written statement of the account sent by appellee to appellant. Here is the case: Appellant wrote a letter to appellee asking for a statement of the balance due. Appellee replied in writing that it was one thousand six hundred seven dollars and twenty-eight cents. On receipt of that letter from appellee, appellant wrote appellee inclosing a check for one thousand dollars, and stating that he would pay the balance soon. How could a written agreement point with more definiteness and certainty to a fact resting in parol? There was no dispute^ about the amount, both parties thoroughly understood what it was. The cases relied on in the majority opinion in my judgment do not justify the statement therein that “ unless the debt is evidenced by a written instrument from which the amount due thereon can be ascertained by calculation,” parol evidence to identify it is inadmissible. I do not think there is a case in our decisions that justifies any such statement. On the contrary, the cases decided by this court hold that where the writing points to some fact, although resting in parol, by which the debt can be certainly ascertained it is sufficient.

In all other respects I agree with the majority opinion.

I am authorized by Judge Cook to say he joins in this dissent.

Per Curiam.

The judgment herein was reversed on a former day, for the reason that the court below erroneously granted the appellee an instruction to the jury to return a verdict in its favor. As will appear from the opinion then rendered, two reasons were assigned for holding this instruction erroneous: (1) That on the evidence it was for the jury to say whethfer or not the appellant authorized or ratified Everhardt’s purchase of the material for his, the appellant’s, account; and (2) that the greater part of the account sued on is barred by the three-year statute of limitations. On the second of these questions the court was divided four to two, Judge Sykes voting with the majority. Since the rendition of our former judgment, Judge Sykes has ceased to be' a member of the court and has been succeeded by Judge McG-owen, who agrees with .Judges Anderson and Cook that the appellant’s letters set forth in the original opinion in chief constitute a sufficient acknowledgment of or promise to pay the account sued on to save it from the bar of the three-year statute of limitations. Consequently, the court is now equally divided on that question, Judges Ethridge, Holden, and Smith adhering to the view thereof set forth in the original opinion in chief, Judges McGowen and Cook concurring with Judge Anderson in the views -set forth by him in his dissenting opinion.

A decision of this question is not necessarjr to the reversal of the judgment of the court below, for, as hereinbefore set forth, the instruction here under consideration was erroneous for another reason; and because of the division among us as to whether or not the three-year statute of limitations applies, we will express no opinion thereon, but will rest the reversal of the judgment of the court below on the first reason herein-before set forth. The opinion hereinbefore rendered will not be withdrawn, but the views therein expressed on the statute of limitations are not now and must not be considered as the views of the court, but of Judges Ethridge, Holden, and Smith only; the views of Judges McGowen, Anderson, and Cook being as set forth by Judge Anderson in his dissenting opinion.

With this modification of the opinion, the suggestion of error will be overruled.

Overruled.