Brown's Admr. v. Osborne

• Decision Date: 25 January 1910
• Citation: 136 Ky. 456
• Parties: Brown's Admr v. Osborne
• Court: Kentucky Court of Appeals

Page 456

136 Ky. 456

Brown's Admr v. Osborne

Court of Appeals of Kentucky.

January 25, 1910.

Appeal from Nelson Circuit Court.

SAMUEL E. JONES, Circuit Judge.

Judgment for plaintiff, defendant appeals. — Affirmed.

E. E. McKAY for appellant.

KELLEY & CHERRY for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

Samuel Brown, appellant's intestate, died in March 1908, and this suit was brought against his administrator on the following account, which we set out in full for the purpose of illustrating the alleged errors complained of in the trial of the case:

                  Samuel Brown, deceased, in Account with Mrs. E. Osborne
                Oct. 10, 1900. To cash borrowed............... $6 00
                Jan. 10, 1901. To cash borrowed............... 12 00
                Sept. 1, 1903. To 32 months board and washing
                    from January 1, 1901, to September 1, 1903
                    at $15 per month..........................480 00
                Sept. 1, 1904. To 2 months' board and washing
                    July and August........................... 30 00
                Sept. 1, 1904. To 2 months' board and washing
                    July and August........................... 30 00
                Sept. 1, 1905. To 2 months' board and washing, July
                    and August................................ 30 00
                                                              ------ $588 00
                

                                           Credits
                Nov. 10, 1902. By cash ............................. 150 00
                Aug. 10, 1907. By 1 sow given to Mason .............  15 00
                Aug. 15, 1907. By 1 cow given to Bessie ............  35 00
                                                                      -----  200 00
                    Balance due ........................................... $388 00
                

The answer controverted all the material averments of the petition, and further set up and relied on the five years' statute of limitations as a bar to so much of the account as was due more than five years before the death of the intestate.

The deceased was a bachelor and quite an old man when he died, and Mrs. Osborne was his niece. There was evidence showing that in 1901 Mrs. Osborne loaned him $12, that he boarded at her house during the time mentioned in the account, and that the charges made were reasonable. It was also shown that the Mason and Bessie mentioned in the account were children of Mrs. Osborne, and that when he gave to them the sow and cow it was for the purpose of getting credit by their value on his board, and that when he paid the $150 credited on his account he said he wanted it to go as part of what he owed for board, and that on several occasions he said he owed Mrs. Osborne for board and wanted her paid. Virtually no evidence was introduced in opposition to the claim. The court excluded from the consideration of the jury the item of $6, and instructed them, in substance: (1) That if they believed that Mrs. Osborne loaned the intestate $12 and furnished him board and lodging and did his washing under an agreement by which she was to be compensated therefor, they should find for her the amount of the money loaned and the reasonable value of the board and washing, not exceeding the amount claimed. (2) That if they believed that any part of Mrs. Osborne's claim was barred by the statute of limitations, they should apply the payments made by the intestate on that part of the account which was barred. (3) That the plea of limitation was not available if the jury believed from the evidence that the intestate, within five years next after that portion of the account sued on that was due more than five years before his death, acknowledged to Mrs. Osborne or her agent his indebtedness. It is insisted by counsel for appellant: (1) That the instructions are erroneous; (2) that the evidence is not sufficient to show a promise or agreement upon the part of the intestate to pay board; and (3) that the greater part of the account was barred by the statute of limitations, and the acknowledgements or payments by the intestate did not prevent the statute from running. The first instruction is criticised on account of the inaccurate use of a few words; but we do not think it possible that the jury could have been misled by these verbal errors, or that they prejudiced substantially or otherwise the rights of the appellee. Except for the credits upon the account, and the acknowledgments made by the deceased that he owed it, a considerable part of the account would be barred by the statute. And so two questions are presented: First, the effect of the payments; and second of the acknowledgments.

When a person makes a payment upon an account, a part of which is barred by limitation at the time the payment is made, and there is no direction made by him as to what items on the account the credit shall be applied to the extinguishment of, the law authorizes the application of it to the payment of the oldest items on the account, although these items, except for the payment, would be barred by the statute. This the court in effect directed the jury to do. But the mere putting a credit on an open account or note, unless there is evidence showing that the amount represented by the credit was paid by the debtor on the note or account, will not be sufficient in itself to stop the statute from running. Hopkins v. Stout, 6 Bush 375; Frazer v. Frazer, 13 Bush 397. If the mere entry of a payment as a credit upon an open account or note would of itself have this effect, it would be an easy matter for the...