Webb v. Chambers, 25 N.C. 374, 3 Ired. 374 (1843)

June 1843 · Supreme Court of North Carolina

25 N.C. 374, 3 Ired. 374

THOMAS WEBB vs. MOSES CHAMBERS.

June 1843

Where a merchant renders an account to one of his customers, and the latter it without making objection to any of its items, the jury may infer an admission of its correctness and a promise to pay the balance.

Appeal from the Superior Court of Law of Person County, at Spring Term, 1843, his Honor Judge Battle presiding.

This was an action of assumpsit brought to recover the amount of a store account contracted from the year 1830 to 1833. Pleas, General issue and statute of limitations. On the trial the plaintiff introduced a witness, who proved that on the 19th of October, 1840, the defendant was at the plaintiff’s store, and the parties had a conversation for some time by themselves in relation to the account, when they came into the witness’ presence and the defendant, in reply to a proposition of the plaintiff that he should close his account by bond, said he would come up at any day that might be named and settle the account, and would pay it off as soon as he could sell his toba.eco, that the defendant then had the account in his hand, but the witness did not see him read it over nor did he hear it read in the defendant’s presence. The plaintiff then introduced a son of the defendant, who testified that his father traded at the plaintiff’s store during the years mentioned in the account, but he could not state that any particular article therein mentioned had been purchased by his father. The counsel for the defendant contended that the testimony was not sufficient to prove the account, and that, if it were, there was no such acknowledgment or promise to pay as would take the case out of the operation of the statute of limitations. But the court instructed the jury, that, if they believed the testimony, they might find for the plaintiff, which they did. Judgment being rendered pursuant to the verdict, the defendant0 appealed,

Norioood for the plaintiff.

Kerr for the defendant.

RuffiN, C. J.

There can be no doubt of the correctness of the opinion given to the jury. It is the ordinary evidence of the justice of a merchant’s account, when he renders it to his customer and the latter keeps it without objection to any of its items. Without a denial of it in toto or of some part of it, the jury may infer an admission of its correctness and a promise to pay the balance. Upon that part of the case alone, therefore, the court might have left it to the jury on both points, that is, as proof of the delivery of the articles and of a mere promise to pay. But in addition to those inferences, here the defendant, with the account in his hand, and after perusing it or opportunity of perusing it, expressly promised to settle the account and pay it. A promise could not be more direct or precise, for there was nothing left to uncertainty, as the account fixed the debt, which the defendant agreed to pay.

Per Curiam. Judgment affirmed.