Richlands Supply Co. v. Banks

Supreme Court of North Carolina

Richlands Supply Co. v. Banks

171 S.E. 358, 205 N.C. 343, 1933 N.C. LEXIS 551

Supreme Court of North Carolina·Decided November 1, 1933·Published·Cited by 5 cases

Opinion

Stacy, C. J.

That the plaintiff’s cause of action is not “to recover a balance due upon a mutual, open and current account, where there have *345 been reciprocal demands between tbe parties,” etc., as contemplated by C. S., 421, may bo conceded from a consideration of tbe decisions dealing with tbis section. Brock v. Franck, 194 N. C., 346, 139 S. E., 696; McKinnie Bros. v. Wester, 188 N. C., 514, 125 S. E., 1; Hollingsworth v. Allen, 176 N. C., 629, 97 S. E., 625; Green v. Caldcleugh, 18 N. C., 320.

But while tbe plaintiff’s entire account may not be saved by tbe provisions of C. S., 421 from tbe bar of tbe tbree-year statute of limitations, it does not follow tbat tbe whole account is thereby barred. TJnder tbe principle announced in Phillips v. Penland, 196 N. C., 425, 147 S. E., 731, Wood v. Wood, 186 N. C., 559, 120 S. E., 194, Alley v. Rogers, 170 N. C., 538, 87 S. E., 326, and others of like import, it would seem tbat plaintiff is entitled to recover for all purchases made within three years next immediately preceding tbe cash payment of $70.00 on 7 December, 1929, less any payments by tbe defendant during said period. Tbe effect of tbis payment on 7 December was to stop tbe running of tbe statute of limitations against all items not then barred, and to fix a new terminus a quo from which tbe statute would start to run anew. Supply Co. v. Dowd, 146 N. C., 191, 59 S. E., 685. Tbe payment was an acknowledgment of tbe debt.

We do not understand tbat tbe account current, for such it is (Kimboll v. Person, 3 N. C., 394), became an account stated at tbe end of each year, though perhaps tbis might be inferred from tbe dealings between tbe parties. Stokes v. Taylor, 104 N. C., 394, 10 S. E., 566; O’Hanlon Co. v. Jess, 58 Mont., 415, 193 Pac., 65, 14 A. L. R., 237, and note. However, such is not tbe contention of tbe plaintiff, and we omit any consideration of tbis view of tbe matter. Brown & M. Co. v. Gise, 14 N. M., 282, 91 Pac., 716; Note 14, A. L. R., 240.

There was error in instructing tbe jury tbat plaintiff’s entire claim is barred by tbe tbree-year statute of limitations.

New trial.

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Stacy, C. J.

That the plaintiff’s cause of action is not “to recover a balance due upon a mutual, open and current account, where there have *345 been reciprocal demands between tbe parties,” etc., as contemplated by C. S., 421, may bo conceded from a consideration of tbe decisions dealing with tbis section. Brock v. Franck, 194 N. C., 346, 139 S. E., 696; McKinnie Bros. v. Wester, 188 N. C., 514, 125 S. E., 1; Hollingsworth v. Allen, 176 N. C., 629, 97 S. E., 625; Green v. Caldcleugh, 18 N. C., 320.

But while tbe plaintiff’s entire account may not be saved by tbe provisions of C. S., 421 from tbe bar of tbe tbree-year statute of limitations, it does not follow tbat tbe whole account is thereby barred. TJnder tbe principle announced in Phillips v. Penland, 196 N. C., 425, 147 S. E., 731, Wood v. Wood, 186 N. C., 559, 120 S. E., 194, Alley v. Rogers, 170 N. C., 538, 87 S. E., 326, and others of like import, it would seem tbat plaintiff is entitled to recover for all purchases made within three years next immediately preceding tbe cash payment of $70.00 on 7 December, 1929, less any payments by tbe defendant during said period. Tbe effect of tbis payment on 7 December was to stop tbe running of tbe statute of limitations against all items not then barred, and to fix a new terminus a quo from which tbe statute would start to run anew. Supply Co. v. Dowd, 146 N. C., 191, 59 S. E., 685. Tbe payment was an acknowledgment of tbe debt.

We do not understand tbat tbe account current, for such it is (Kimboll v. Person, 3 N. C., 394), became an account stated at tbe end of each year, though perhaps tbis might be inferred from tbe dealings between tbe parties. Stokes v. Taylor, 104 N. C., 394, 10 S. E., 566; O’Hanlon Co. v. Jess, 58 Mont., 415, 193 Pac., 65, 14 A. L. R., 237, and note. However, such is not tbe contention of tbe plaintiff, and we omit any consideration of tbis view of tbe matter. Brown & M. Co. v. Gise, 14 N. M., 282, 91 Pac., 716; Note 14, A. L. R., 240.

There was error in instructing tbe jury tbat plaintiff’s entire claim is barred by tbe tbree-year statute of limitations.

New trial.

Richlands Supply Co. v. Banks, 171 S.E. 358, 205 N.C. 343, 1933 N.C. LEXIS 551 (N.C. 1933).

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