Campbell v. Finck

JUDGE ROBERTSON delivered the opinion op the court: The petition alleging that, at the request of the appellant, the appellee consigned to him by Adams express the brandy, as charged in the account sued on, was not traversed by the answer, and was, therefore, confessed, as the circuit court properly instructed the jury. Consequently, even if the appellant, as he alleges without proof, never received the brandy, the loss must be his, not that of the appellee; and no other proof of the sale and delivery of the brandy to -the appellant or hisragent was necessary. The demand was not barred by the statute of limitations; for, although the statute of 1862, extending to two years the limitation to actions on merchants’ accounts, had expired [108] before tbe action was commenced, yet, as it was shown that the appellant was also a merchant in the legal sense, by buying and retailing liquors, tobacco, and other articles, as an unrestricted business, in the house kept by him as a hotel, the limitation as between merchant and merchant was the only statutory bar applicable to the case, and that limitation had not run out when this suit was brought. Wherefore, perceiving nq error in the judgment, it is affirmed.