Musgrove v. City of Jackson

Cooper, J., delivered the opinion of the court. The appellant sued the City of Jackson to recover various [392] amounts paid by her testator in his life, from year to year, to the city for license fees charged for the privilege of carrying on his business .as a banker and real-estate agent. The defendant, by its third and fourth pleas, interposed the bar of the three years’ Statute of Limitations, to which pleas the plaintiff demurred. The Court overruled the demurrers, which is now assigned for error. Code of 1871, § 2151, declares that “ all actions of debt, assumpsit, or on the case, founded upon any promissory note, bill of exchange, contract, or liability, not under seal, express or implied, except actions founded upon open accounts, . . . shall be commenced within six years next after the cause of such action accrued, and not after. All actions of debt or assumpsit, founded upon any open account, shall be commenced within three years next after the cause of such action accrued, and not after.” By act of February 26, 1876 (Acts 1876, p. 252), this section was amended by inserting after the words “ open account,” the words “ accounts stated,” and “ verbal contracts.” The question is whether the limitation of three years is applicable to a suit brought on an implied contract. Contracts are divided, by the text-writers on the subject, into express and implied ; the former being those to which the minds of the parties have assented, the latter those implied by law, from the facts and circumstances of the transaction, without or against the assent of the party to be bound. . The distinction between an express and an implied contract is, that in one the liabilit}1- arises .from the contract, and in the other the contract is implied, or arises from the liability. An implied contract never exists except in the absence of an express one; and, as all written contracts are necessarily express, it follows that the distinction between written and verbal, or parol, contracts can only be applied to those of the latter class. Where we speak of a written and a verbal contract, we do not intend to imply that there is a difference in their characters, but that in the one case the evidence of its terms is, and in the other is not, in writing. The amendment of 1876 only changed the Statute of Limitations, as prescribed in § 2151 of the Code, by applying the bar of three years to all suits on express contracts not in writing, and on stated accounts, [393] whether parol or written. The liability of the appellee, if it exists at all, arose, not from an express contract, either written or verbal, but from the fact that the appellee coerced the plaintiff’s testator to pay certain taxes which it had no power to impose; in which case, because of its obligation to repay them, the law implies a contract-on its part so to do. The demurrers should have been sustained. The other questions presented by the record have been decided in the recent case of Jackson v. Newman, ante, 385. Judgment reversed.