Gulfport Fertilizer Co. v. McMurphy

Sykes, J., delivered the opinion of the court. Suit was instituted by the appellant, Gulfport Fertilizer Company, against J. A. McMurphy, appellee, in the circuit court, for four hundred and fifty-one dollars and fifty cents, balance claimed to be due on an open account. Defendant in the court below pleaded the general issue and a special plea setting out the fact that he had [257] settled with defendant for all items on this account except those contained in the first two cars shipped to the defendant; that the two cars above mentioned were shipped to bim on consignment, with the understanding that he would deliver the fertilizer to certain persons and take their notes therefor and turn these notes over to the fertilizer company; that he was not to be held liable to plaintiff for these two cars after taking these said notes; that in accordance with this contract, he took notes and turned them over to the fertilizer company, and for this reason is not liable for any balance due on these two cars. Defendant also gave notice, under the general issue, that he would prove a payment for these two ears. A special plea of the three-year statute of limitations was then filed by the defendant. Issue was joined on the special pleas by the plaintiff. There -was some question raised in the pleadings, and also in the testimony, about these first two cars having been sold to the Harrison County Union Warehouse Company; but inasmuch as the defendant himself testified that he received these two cars under his contract with the plaintiff, it makes no difference as to their being originally billed or sold to the Harrison County Union Warehouse Company. The testimony introduced by the plaintiff in the court helow was to the effect that'the entire account was correct, and that the defendant had settled for all of the. items except the goods shipped him in the first two cars, the- price of which was the amount Here sued for; that at the time of the settlement with the defendant, at which time defendant gave his personal notes for balance due plaintiff, the defendant was credited with all of the notes which he claims to have taken from customers who purchased the fertilizer contained in the first two cars, but, through an oversight, these two cars at that time were not charged to the defendant, and no settlement had ever been made as to them. The defendant himself was put upon the witness stand by the [258] plaintiff, and did not deny the correctness of the account against him, or that he had not been charged with the amounts herein sued for. at the time he gave the notes. His defense was that he had taken notes for the contents of these two cars, which notes were delivered to the plaintiff. These two cars were- purchased from the plaintiff on February 16, 1911, and this suit was filed in March, 1914, or about three years and one month after the date of the purchase of these two cars. The defendant was asked when he should have made settlement with the plaintiff for these two cars. His answnr was that he made settlement by selling the fertilizer 'and taking the notes of his customers for the same, which notes were accepted in settlement by the plaintiff; that there was no particular time limit within which he had to do this; that they did not charge purchasers of fertilizer any interest on purchases made prior to May 1st of each year until May 1st. The plea of the statute of limitations is an affirmative plea, and must be proved by the party setting it up. In this case it was incumbent upon the defendant, in order to take advantage of the plea, to show that the cause of action herein sued for, accrued against him more than three years prior to the service of summons upon him in this suit. The record does not show when this process was served upon defendant. In his testimony, defendant declined to testify to any certain time when he was to make settlement for these cars. The cause of action did not accrue against him until the time elapsed within which it was his duty to have made this settlement. The defendant testified-that he had settled for these two cars with the general manager of the fertilizer' company, but failed to state the details of this settlement. A motion to exclude the testimony and for a peremptory instruction was sustained in the circuit court. Whether it was based upon the theory that the defendant had settled for these goods, [259] or whether, upon the theory that the suit was barred by the statute of limitations, we do not know. We think, however, that, under the testimony in this case, which is of rather a general character, these questions were controverted questions of fact, and should ; have been submitted to the jury for its determination. Reversed and remanded.