Deluxe Filling Station v. Mee.

DREW, Judge. Plaintiff sued on open account alleging defendant tó he indebted unto it in the sum of $115.32 for merchandise purchased between the dates of December 31, 1927, and March 31, 1929. It attached an itemized statement to its petition. Defendant filed a plea of three-year prescription and then answered denying each and every article of the petition. The lower court rendered judgment, as prayed for, and defendant has appealed. The record discloses that defendant purchased all the merchandise, as shown on the itemized account, and is owing for same, and if it were not for the plea of prescription, the judgment of the lower court would be correct There is only one item on the itemized account that was charged to defendant within three years time prior to the filing of this suit; that is, an item of $17.50 charged on March 31, 1929. The next to the last item was charged on March 8, 1929. This suit was filed March 16, 1932. It is not shown that defendant has ever paid anything on said account or that he has ever acknowledged it in writing'or otherwise. It therefore follows that all of said account is prescribed, with the exception of the last item of $17.50. Defendant contends that this item was charged long after he became 'bound for it, which is denied by plaintiff’s manager. The burden is on defendant to prove that the prescription of three years is applicable to this item, and we do not think he has met that burden. It therefore follows that the plea of three years’ prescription is sustained as to all of the account, with the exception of $17.50, and the judgment of the lower court is amended by reducing the amount of the judgment in favor of plaintiff from $115.32 to the sum of $17.50; and as amended the judgment of the lower court is affirmed, cost of appeal to be paid by appellee. MILLS, J., recused.