Tew v. Hinson, 215 N.C. 456 (1939)

April 19, 1939 · Supreme Court of North Carolina

215 N.C. 456

M. D. TEW v. LEONA HINSON, Administratrix of LULA LEE, Deceased.

(Filed 19 April, 1939.)

Limitation of Actions § 3b — Facts held insufficient to establish mutual, open, and current accounts, and statute began to run from date of each item.

Plaintiff instituted this action against the administratrix of deceased to recover for services rendered deceased, and it appeared that plaintiff alone kept the account of charges for such services and that he entered thereon from time to time credits for rent for decedent’s land. Held: The facts are insufficient to establish mutual, open, and current accounts, O. S., 421, and the statute of limitations began to run against plaintiff’s claims from the date of each item, but the judgment of the lower court is modified to include an item which was not denied, for taxes paid within three years prior to the death of deceased.

Appeal by plaintiff from Grady, J., at September Term, 1938, of SampsoN.

Modified and affirmed.

Plaintiff instituted his action to recover for services rendered defendant’s intestate, Lula Lee. Plaintiff filed a statement of account showing amounts charged for his services from 1924 to 1932, and for amounts expended by bim for taxes, and on this statement be credited defendant witb rent of decedent’s land at tbe rate of $80.00 per annum up to and including tbe year 1936. Lula Lee died March, 1936.

Defendant pleaded tbe statute of limitations as to plaintiff’s action, and also set up counterclaim for rent of land and for waste alleged to have been committed tbereon by tbe plaintiff.

Tbe court below ruled tbat all items charged on plaintiff’s account which did not accrue within three years of tbe death of defendant’s intestate were barred by tbe statute of limitations, and instructed tbe jury tbat tbe only item not barred was $3.20 paid by plaintiff for premiums on tbe burial association policy of decedent. Tbe court also held, and so charged tbe jury, tbat defendant was entitled to recover of plaintiff rent of tbe land for three years at tbe admitted rate of $80.00 per annum. It also appeared on plaintiff’s account tbat be bad paid taxes on tbe land in October, 1933, in tbe sum of $21.70. This was not denied.

Tbe jury answered tbe issues in conformity witb tbe rulings of tbe court, and from judgment limiting plaintiff’s recovery to $3.20, and allowing defendant judgment against the plaintiff for $240.00, tbe plaintiff appealed.

Butler & Butler for plaintiff.

P. D. Herring for defendant.

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.