Pettus v. Rawls

HART, J. On August 26, 1916, Robert L. Pettus sued J. A. Rawls and Allie Rawls for the sum of $294.11. He alleged they owed him for merchandise. An itemized account duly verified was filed with the complaint. The defendant answered denying all the allegations of the complaint and pleading in bar of the action the statute of limitations of three years. The case was tried before a jury on March 21, 1917. At the conclusion of the evidence the court told the jury that the last payment on the account was made in February, 1913, and that the account was barred by the statute of limitations, the suit having been brought in August, 1916. The jury were therefore directed to, return a verdict for the defendant which was accordingly done. From the judgment rendered the plaintiff has appealed. It is conceded that the last payment was made in February, 1913, and that the account is barred by the statute of limitations unless the following constitutes a payment: On the itemized account under date of Nov- ember 9, 1909, there appears the folowing charge: “On the Redman account $12.98. ’ ’ On the credit side of the account appears in pencil the following: “By Redman 3-5 1914, $12.98.” Pettus claims that this is a credit on the account. His testimony on the point is as follows: “Q. All you did was to make a correction in the account by crediting her with this item that was charged to her in 1909 ? A. Yes, sir. Q. And no payment was made on the account? A. Not in money. Q. You just gave her credit for this amount charged in 1909? A. I agreed to give her credit. Q. She was not out anything ? A. She did not pay anything then. ’ ’ This testimony is not sufficient to constitute proof of a payment of the date of March 5, 1914. To constitute payment the money or other thing must pass from the debtor to the creditor for the purpose of extinguishing the debt and the creditor must receive it for the same purpose. 30 Cyc. 1180; McAbee v. Wiley, 92 Ark. 245. Tested by this rule it is perfectly plain that there was no payment. The creditor simply made a correction of an item of the account on his books by crediting Ms debtor with an amount with which she had been erroneously charged. It follows that the judgment must be affirmed.