Taylor v. De Soto Lumber Co.

Smith, C. J., delivered the opinion of the court. The appellee sued the appellant for goods sold and delivered. At the close of the evidence the court below directed the jury to return a verdict for the appellee, and, from a judgment in accordance with the verdict so returned the appellant has brought the case to this court. In addition to the general issue the appellant pleaded the three-year statute of limitations (section 3099, Code of 1906; Hemingway’s Code,, section 2463), on which plea the appellee joined issue. To maintain the issue on its part, the appellant introduced one of its members who stated in substance that he knew of his own knowledge that each item of the account sued on had been sold and delivered to the appellant. That one Eberhard, who it is admitted had entered into a contract to construct a house for the appellant at Crenshaw, Miss., at a stipulated price, under which contract he was to furnish all of the material therefor, purchased certain building material which constitutes the account sued on ■from the appellee at Memphis, Tenn., and directed it to charge and ship same to Taylor at Crenshaw, which accordingly was done. That on May 1, 1920, the appellee received,the following letter from Taylor: “My new house is just about completed, and the time is growing- near for a settlement between Mr. A. Eberhard and us. Will you please mail us at once an itemized statement of our account to date in full showing every transaction—and on receipt of same we will mail you check to close the account. In the future please ship everything bought by Mr. Eberhard collect, so that we can finish as we go along.” [840] In response to this letter the witness prepared a statement of which the account sued on is a duplicate, and mailed it to Taylor, showing a balance due on the account of one thousand six hundred seven dollars and twenty-eight cents. A few days thereafter the appellant received the following letter from Tavlor dated May 6, 1920: ’ “Enclosed find check for one thousand dollars, part payment on account. Will take care of balance a little later. ’ ’ . The check referred to in this letter appears as a credit on the account sued on. There also appears thereon two other credits, one for freight, January 5, 1920, eighty-eight dollars and ninety-seven cents, and another for cash, January 9, 1920, seven hundred ninety-two dollars and seventy-five cents, but by whom these two payments were made does not appear. When suit was filed a large part of the account was barred by the three-year statute of limitations if the same is applicable thereto. Eberhard did not testify, but the appellant himself did, and stated that he did hot authorize Eberhard to purchase any material from the appellee for liis, the appellant’s, account, and that he did not know that Eberhard had done so until demand for the payment thereof was made on him by the appellee. He also stated that he did not authorize Eberhard to have the lumber shipped to him, and did not remember whether it was billed to him or not; that Eberhard unloaded it from the railroad cars in which it was shipped and that he, the appellant, did not pay the freight thereon, and did not know whether the material was received by Eberhard, or whether it was used by him in constructing the house. He also stated that the two letters written by him and the remittance contained in the second were at the request of Eberhard, and that he did not thereby intend to assume the payment of the account, or to ratify [841] Eberhard’s action in having- the material charg-ed to him. On this evidence it was for the jury to say whether or not the appellee authorized or ratified Eberhard’s purchase of the material for his (the appellant’s) account. Consequently the peremptory instruction requested by 'the appellee should not have been given. The greater part of the account sued on was barred by the three-year statute of limitations, and the appellee is not entitled to recover therefor without reference to the authority vel non of Eberhard in purchasing the same on his credit. The contention of the appellee in this connection is that the second of the two letters hereinbefore referred to written to it by the appellant contains an acknowledgment of and a promise in writing to pay the account sued on, and consequently the case is taken out of the operation of the three-year statute of limitations. Section 3118, Code of 1906; Hemingway’s Code, section 2482. An acknowledgment or promise that will save the bar of the statute of limitations must identify the debt and acknowledge or promise to pay a definite amount (Mask v. Philler, 32 Miss. 237; Trustees of Canton Female Academy v. Gilman, 55 Miss. 148; Eckford v. Evans, 56 Miss. 18; Fletcher v. Gillan, 62 Miss. 8; Allen v. Hillman, 69 Miss. 225, 13 So. 871; Philp v. Hicks, 112 Miss. 581, 73 So. 610), unless the debt is evidenced by a written instrument from which the- amount due thereon can be ascertained by calculation, in which event the amount due need not be stated in the acknowledgment or new promise. Hart v. Boyt, 54 Miss. 547; Heflin v. Kinard, 67 Miss. 522, 7 So. 493. To allow the debt and amount due thereon “to be proved by parol would produce the evil the statute requiring an acknowledgment or promise in writing to save the bar of the statute was intended to prevent.” Trustees of Canton Female Academy v. Gilman, 55 Miss. 148, quoted with approval in Heflin v. Kinard, 67 Miss. 522, 7 So. 493. That this [842] would be the effect of allowing such proof to be made by parol is made manifest here, for in order to recover the appellee was compelled to and did prove by parol both the account sued on and the balance due thereon. It is true that the second letter was written after the statement of the account had been sent to the appellant in response to his request therefor, but what that statement contained, to and from whom due, the items thereof, and the amount due thereon, rest wholly in parol. The sufficiency of the letter here in question as an acknowledgment or a new promise does not really arise on this record, for the reason that the appellee simply joined issue on the plea of the statute of limitations and did not reply thereto setting up an acknowledgment or new promise in writing. The case has been argued by counsel, however, as if an acknowledgment or new promise is presented by the pleadings, and we had decided it accordingly. Reversed and remanded.