F. A. Boyle & Co. v. Kittredge

Wyly, J. Plaintiffs sued tlie defendants on an open account for plantation supplies sold tliern on fourth, day of March, 18G1. Defendants pleaded the prescription of three and five years. There was judgment in the court below in favor of defendants and plaintiffs have appealed. The account seems to be prescribed on its face, having' been made on fourth March, 1861', and not sued upon till twenty-ninth March, 1867, when the defendants wore cited. Plaintiffs have attempted to prove the. account was acknowledged by one of the defendants, Kittredge, in March, 1865. They have offered but one witness, John H. Polhaus, who testifies as follows: “In or about the month of March, 1865, Dr. Kittredge informed me in New Orleans, when I asked him about the bills, that he would pay out of that year’s crop. He said if he made a good crop he would pay it that season.” This testimony is contradicted by the evidence of Dr. Kittredge, who testifies as follows: “ I reside in the parish of Assumption in this State. The Areal and Raceland plantations are situated in the parish of La-fourche, about thirty or forty miles from my residence, more or less. .These plantations belong to Kittredge & Ewing, and they are controlled almost entirely, and are supplied by Dr. Ewing. I am a member of the firm of Kittredge & Ewing. I.do not supply these plantations at all. I go to these plantations sometimes once a year and sometimes once, every three or four years. About the time stated by Mr. Polhaus in his interrogatory, I was present at Mr. Polhaus’ counting house purchasing of him a large invoice of pork and flour for my use at Elmore plantation, my residence, and while there the conversation between us was in regard to the Areal and Raceland plantations. I observed to Mr. Polhaus that those plantations had been nearly destroyed by the Confederate and Federal troops, and that instead of making anything since the war began, we had been out of pocket some twenty thousand dollars, but this year (1865) we had put in a large crop of cotton, and expected to make a good profit, provided we succeeded in our crops, and if so we might be able to pay any just and valid claim they might have against us. Mr. Polhaus then observed to me that Mr. Boyle had some claims against these plantations without showing any specified account of such claims. I answered him that I did not know anything about these claims; that Dr. Ewing was the man who attended to that, and that he must go to him. I did not acknowledge these accounts and had no idea of doing so, for I knew nothing of the articles charged therein and consequently I could not know anything about them.” The testimony of Polhaus is not sufficiently positive to establish the interruption of prescription. He does not state what particular bills were acknowledged by the defendant, nor does he state that he showed the bills or accounts to the defendant, Kittredge, and that he renounced the prescription and promised to pay them. The testimony of Dr. Kittredge invalidates the evidence of this witness. He states positively that he did not acknowledge the accounts [275] and had no idea of doing so. We think from the evidence that plaintiffs have failed to establish the interruption of the prescription of three-years pleaded by the defendants, and that that plea must prevail. It is therefore ordered that the judgment appealed from be affirmed, with costs.