Tew v. . Hinson

2 S.E.2d 376, 215 N.C. 456, 1939 N.C. LEXIS 288

• Court: Supreme Court of North Carolina
• Decided: April 19, 1939
• Status: Published

Opinion

DeviN, J.

The appellant assigns as error the ruling of the court below that all the items in bis account except one were barred by the statute of limitations. It was admitted that the services for which claim was made were rendered, and all taxes (except one item) were paid, more than three years before the death of the intestate, but plaintiff contends that this was a mutual, open and current account between him and decedent, and that by virtue of C. S., 421, the cause of action accrued only from the last item on the account, which was a credit for rent within the three years’ period. The evidence, however, shows that plaintiff alone kept an account of bis charges against the decedent for services rendered, and that be entered thereon from time to time credits for rent of land. These facts are insufficient to invoke the rule as to mutual, open and current accounts, or to prevent the running of the statute from the date of each item. Supply Co. v. Banks, 205 N. C., 343, 171 S. E., 358; Phillips v. Penland, 196 N. C., 425, 147 S. E., 731; Brock v. Franck, 194 N. C., 346, 139 S. E., 696; McKinnie v. Wester, 188 N. C., 514, 125 S. E., 1; Wood v. Wood, 186 N. C., 559, 120 S. E., 194; Hollingsworth v. Allen, 176 N. C., 629, 97 S. E., 625.

The court instructed the jury that the only item on plaintiff’s claim not barred was one of $3.20. However, it appears that there was another item of $21.10 for taxes paid in October, 1933. This not being denied should have been allowed plaintiff.

The judgment must be modified to add to plaintiff’s recovery the sum of $21.70 with interest from October, 1933. Except as hereby modified the judgment of the Superior Court is affirmed.

Modified and affirmed.