Hussey v. Burgwyn, 51 N.C. 385, 6 Jones 385 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 385, 6 Jones 385

OBED HUSSEY v. HENRY K. BURGWYN.

The bat of the statute of limitations is not repelled by the transmission of a draft by the debtor and its receipt by the creditor within the three years, the former not making- any allusion to, or recognition of the account or any debt whatever.

In order that one item’s being in date, shall have the effect of bringing the whole account within date, it must appear that there were mutual accounts between the parties, or an account of mutual dealings, kept by one with the knowledge and concurrence of the other.

This was an action of assumpsit, tried before Dick, J., at the Spring Term, 1859, of Northampton Superior Court.

The plaintiff produced in evidence an account for articles furnished the defendant, which it was alleged, had been sold and delivered to him at different times between the 20th May, 1851, and the 20th June, 185G, and used upon his farm. The action was commenced on the 16th of January, 1858, and all the articles sued for are charged more than three years before the suit was brought, except two; one, on the 28th of May, 1855, for $15 00, and the other, on the 20th of June, 1856, for $13 50.

The plaintiff proved by a deposition taken in the cause, the sale and delivery to the defendant of all the articles stated in the account, amounting to $943 45, upon orders of the defendant, which were filed with the deposition and made part of it.

The defendant relied on the statute of limitations.

A new promise and acknowledgement of a subsisting debt, was relied on to repel the bar created by the statute. Upon this point, the evidence was, that on the 2nd of June, 185-5, a draft for $450 was received from the defendant by the plaintiff, and was paid at maturity. This draft was credited on the account declared on, as follows: “ 1856, June 2nd.. By John Burgwyn’s draft on H. K. Burgwyn, payable at Earners’ Bank of Virginia, at Petersburg, on 5th of September, 1855, $450.” The defendant, by letter of 17th of June, 1856, ordered articles from the plaintiff, charged at $13,50. There ■was no evidence that the account declared on, had ever been submitted to the defendant previously to the draft of $450, but the defendant’s written orders for all the articles charged, except a small amount, were filed and proved, and there was no evidence of any other dealings between the parties.

His Honor being of opinion that the statute was not repelled as to the items bearing date more than three years before the beginning of the suit, so instructed the jury, and they gave a verdict for the two items not barred, with interest, amounting to $38, and no more. The plaintiff’s counsel excepted to the charge of his Honor, and on judgment being rendered, appealed.

Ooniglcmd, for the plaintiff.

Barnes, for the defendant.

Battle, J.

The evidence relied on by the plaintiff, to take his case out of the operation of the statute of limitations, was, in our opinion, entirely insufficient for that purpose. The plaintiff’s counsel contends strenuously, that the remittance of the draft by the defendant was in part payment of his account, which implied a promise to pay the balance of it; Smith v. Leeper, 10 Ire. Rep. 86. Unfortunately for the argument, there is not the slightest testimony to show whether the draft was sent as a full, or only a partial payment of what the defendant owed the plaintiff. If the letter, in which the remittance was enclosed, had been exhibited on the trial, it might have removed the difficulty; but, in its absence, we cannot presume that a paid, and not a full payment was intended.

The counsel then insists that the statute of limitations did not apply at all, because, as he alleges, the account was a continuing one from its commencement until its close, with a credit given for the proceeds of the draft. The decisive answer to this is, that there must be mutual accounts between the parties, or an account of the mutual dealings kept by one, only, with the knowledge and concurrence of the other, to make an item within time have the effect of preventing the application of the statute; Green v. Caldcleugh, 1 Dev. and Bat. Rep. 320. Here, there were no mutual accounts kept by the parties, and there was no proof that the defendant entrusted the plaintiff to keep such an one.

The rule which appears from McNaughton v. Norris, 1 Hay. Rep. 216, and some others of the earlier cases, to have prevailed in this State, to wit, that the statute of limitations runs only from the date of the last item, when an account has been running on from its first commencement, has been long since exploded. See Green v Caldcleugh ubi supra, and Waldo v. Jolly, 4 Jones’ Rep. 173.

Per Curiam, Judgment affirmed.