Little v. . Shores

17 S.E.2d 503, 220 N.C. 429, 1941 N.C. LEXIS 556

• Court: Supreme Court of North Carolina
• Decided: November 26, 1941
• Status: Published

Opinion

BabNhill, J.

Each payment made on the account stopped the running of the statute of limitations against all prior items then within date, and the payment made in November, 1938 — the first payment made after the last delivery of milk — fixed a new terminus a quo for the beginning of the running of the statute of limitations as to all items of the account which had been kept in date by payments theretofore made.

“So a partial payment, though the evidence need not be in writing, being an act and not a mere declaration, revives the liability because it is deemed a recognition of it and an assumption anew of the balance due.” Hewlett v. Schenck, 82 N. C., 234; Phillips v. Penland, 196 N. C., 425, 147 S. E., 731; Wood v. Wood, 186 N. C., 559, 120 S. E., 194. The payment is an acknowledgment of the debt and its effect is to stop the running of the statute of limitations against all items not then barred, and to fix a new terminus a quo from which the statute starts to run anew. Supply Co. v. Banks, 205 N. C., 343, 171 S. E., 358; Supply Co. v. Dowd, 146 N. C., 191.

The court below, undertaking to apply the rule stated in the Banks case, supra, used the last payment made as the criterion for determining the date upon which the statute of limitations began to run. This overlooks the fact that in the Banks case, supra, the payment noted was the first payment made within the three years next preceding the institution of the action. As a result, no effect is given to any payment other than the last.

Following the Banks case, supra, the payment of 12 November, 1938, is the true criterion.

Furthermore, the plaintiff offered evidence sufficient to be submitted to the jury tending to show that the account sued upon is an account stated.

To constitute a stated account there must be a balance struck and agreed upon as correct after examination and adjustment of the account. However, express examination or assent need not be shown — it may be implied from the circumstances. 1 C. J. S., 707.

An account becomes stated and binding on both parties if after examination the parties sought to be charged unqualifiedly approves of it and expresses his intention to pay it. Ray v. Kings Estate, 179 Pac., 821. The same result obtains where one of the parties calculates the balance due and submits his statement of account to the other who expressly admits its correctness or acknowledges its receipt and promises to pay the balance shown to be due, Duerr v. Sloan, 181 Pac., 407, 1 C. J. S., 711, or makes a part payment and promises to pay the balance. 1 C. J. S., 712.

“It is accepted law in this jurisdiction that when an account is rendered and accepted, or when so rendered there is no protest or objection to its correctness within a reasonable time, such acceptance or failure to so object creates a new contract to pay the amount due. Gooch v. Vaughan, 92 N. C., 611; Copland v. Telegraph Co., 136 N. C., 11, 48 S. E., 501; Davis v. Stephenson, 149 N. C., 113, 62 S. E., 900; Richardson v. Satterwhite, 203 N. C., 113, 164 S. E., 845.” Savage v. Currin, 207 N. C., 222, 176 S. E., 569.

Tbe charge must be held for error prejudicial to the plaintiff.

New trial.