Fletcher v. Gillan

62 Miss. 8

• Court: Mississippi Supreme Court
• Decided: October 15, 1884
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The suit was upon an open account, to which a plea of the statute of limitations was interposed. The plaintiff replied a promise in writing within three years, and to support the replication introduced two letters from the defendant. In one of these he said, “ After bands are paid appropriate balance due on my account to yourself.” In tbe other he said, “ I would like to come there and do your work, so I could pay you what I owe you.” It is insisted that this amounted to an acknowledgment of the debt, as well as a promise to pay it.

This contention cannot be maintained. There is neither a specification of the debt referred to, nor any promise to pay a fixed amount, both of which are necessary to support a new promise. The court correctly held that there was nothing to take the debt out of the statute of limitations, but a small part of the items composing it were bought less than three years before' the commencement of the suit. There was a small credit indorsed on the account, larger in amount than these items, and this credit the court applied to the items not barred, or, in other words, to the last items of the account, thus extinguishing the whole of it.

This was erroneous. The credit was not dated, and there was no parol proof in the case, nor is there anything to denote any appropriation of the credit by either party. Where a payment is made upon an account without any application of it, the law applies it to the first items in the account. Here, therefore, in the absence of any proof, the credit should have been applied to the first items of the account, and this would have left the last items unbarred and unpaid. The plaintiff therefore was entitled to a judgment for the small sum of about eight dollars unbarred at the commencement of the suit.

Reversed and remanded.