Hartness v. Penny

Court of Appeals of North Carolina

Hartness v. Penny

205 S.E.2d 319, 22 N.C. App. 75, 1974 N.C. App. LEXIS 2247

CourtCourt of Appeals of North Carolina

DecidedJune 5, 1974

DocketNo. 7411DC352

StatusPublished

Cited by1 cases

This text of 205 S.E.2d 319 (Hartness v. Penny) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hartness v. Penny, 205 S.E.2d 319, 22 N.C. App. 75, 1974 N.C. App. LEXIS 2247 (N.C. Ct. App. 1974).

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Opinion

VAUGHN, Judge.

It was error to grant plaintiff’s motion for summary judgment.

Plaintiff’s theory is that the mailing of the account to defendant converted the account from an open account to an account stated. At this stage of the proceeding, this contention must fail for there is no showing when the account was mailed. It could have been mailed the day before Harris died. For that reason, there can be no presumption that Harris examined the account and accepted it as correct. We also note that the mere éntry showing a payment by Medicare on 6 May 1972, would not, standing alone and as a matter of law, constitute a payment by the debtor which would toll the statute of limitations.

The judgment granting plaintiff’s motion is reversed, and the case is remanded.

Reversed and remanded.

Judges Parker and Carson concur.

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VAUGHN, Judge.

It was error to grant plaintiff’s motion for summary judgment.

Plaintiff’s theory is that the mailing of the account to defendant converted the account from an open account to an account stated. At this stage of the proceeding, this contention must fail for there is no showing when the account was mailed. It could have been mailed the day before Harris died. For that reason, there can be no presumption that Harris examined the account and accepted it as correct. We also note that the mere éntry showing a payment by Medicare on 6 May 1972, would not, standing alone and as a matter of law, constitute a payment by the debtor which would toll the statute of limitations.

The judgment granting plaintiff’s motion is reversed, and the case is remanded.

Reversed and remanded.

Judges Parker and Carson concur.

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205 S.E.2d 319, 22 N.C. App. 75, 1974 N.C. App. LEXIS 2247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartness-v-penny-ncctapp-1974.

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