Gorman v. Pettus

Riddick, J. (after stating the facts.) This is an action by plaintiffs against the administrator of the estate of D. S. Cook to recover a judgment on an account held by them against D. S. Cook. There is no dispute about the amount of the account, and the only defense set up is that the claim is barred by statute of limitations. This action on the account was commenced on the 1st day of January, 1900. The account shows that on March 16, 1899, a credit of $100 was placed on the account. Prior to that time the last charge or credit upon this account was in 1892. It thus appears that at the time this credit of $100 was entered the account was already barred, and the question we have here is whether the evidence was sufficient to support the finding of the court to the effect that the sum of $100 was paid by Cook on the account at that time, and whether this payment removed the statute bar from the remainder of the debt. “The presumption of a deliberate promise to pay the residue, which the fact of part payment raises, can arise only from what would be deemed an actual part payment. But the fact of actual payment need not in every instance be proved directly. Circumstances from which the payment may be presumed are enough, in the absence of a rebuttal of that presumption.” Wilson v. Pryor, 44 Ark. 534. Now, in this case it is conclusively shown that $100 belong- ■ ing to Cook were appropriated by plaintiffs and credited on his account on the day named. The only room- for doubt is whether this payment was authorized by Cook, and whether he intended it to go as a part payment on the account for which he owed plaintiffs. The evidence shows that Cook had borrowed certain money from one Rolfe which money was paid to him through the firm of Pettus & Buford. A portion of the money borrowed from Rolfe was applied to pay off a prior incumbrance on land that Cook mortgaged to Rolfe to secure his loan. One hundred dollars of the same were applied as a credit on the account which Cook owed Pettus & Buford, and the remainder was paid over to Cook. The bookkeeper could not recall any conversation he had with Cook about the credit, but remembered that Cook was present in the office at the time the credit was entered, and witness also stated that at the time the credit was entered he gave Cook a statement showing what disposition was made of the money that he had borrowed from Rolfe; that is to say, as we understand witness to mean, he gave Cook a statement showing that a certain part of the money had been applied to remove an incumbrance on -the land mortgaged to Rolfe, and that $100 had been applied as a credit on and in part payment of the account sued on. There was also other evidence showing that Cook within four or five months of his death admitted that he was indebted to plaintiffs. We think the evidence sufficient to support the finding of the court that these $100 were appropriated and paid on the account by and with the knowledge and consent of Cook. There are no circumstances in evidence to rebut the presumption that arises from this payment on his account, so the law presumes from the part payment that he recognized that it was a just debt, and promised to-pay the balance due. We are therefore of the opinion that the judgment should be affirmed, which is so ordered.