Erenfeld v. Erenfeld

• Decision Date: 29 March 1972
• Docket Number: No. 8724,8724
• Citation: 196 N.W.2d 406
• Parties: Dr. F. R. ERENFELD, d/b/a Erenfeld Clinic, Appellant, v. Fred R. ERENFELD, Executor of the Estate of Louis G. Texlee, Deceased, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 406

196 N.W.2d 406

Dr. F. R. ERENFELD, d/b/a Erenfeld Clinic, Appellant, v. Fred R. ERENFELD, Executor of the Estate of Louis G. Texlee, Deceased, Respondent.

Civ. No. 8724.

Supreme Court of North Dakota.

March 29, 1972.

Rehearing Denied May 1, 1972.

Syllabus by the Court

1. An account consisting only of charges on one side and payments on the other is not a mutual account.

2. An account is not an account stated where there is no written acknowledgment of or promise to pay the debt.

3. A doctor's account which consists only of charges by the doctor and payments by the patient which is not a mutual account or an account stated is a simple open account.

4. On a simple open account the statute of limitations runs from the date of each item.

5. Part payment on a simple open account without a written acknowledgment or promise does not toll the statute of limitations. However, if a debtor makes no specific appropriation, the creditor may apply the debtor's payments to the oldest obligation so that payments made thereon do not reduce the obligation incurred during the statutory period of limitation.

6. The limitations prescribed by § 28--01--16(1), N.D.C.C. apply to a doctor's account.

Farhart & Rasmuson, Minot, for appellant.

Funke & Eaton, Minot, for respondent.

PAULSON, Judge (on reassignment).

This is an appeal from a judgment of the District Court of Ward County which affirmed an order of the County Court of Ward County. The order of the county court disallowed $12,779.40 of a claim for $19,040.40 made by Dr. F. R. Erenfeld, doing business as Erenfeld Clinic (hereinafter Clinic), against the estate of Louis G. Texlee, deceased.

Mr. Texlee died testate on November 21, 1969. Mr. Texlee bequeathed all of his estate equally to St. Joseph's Hospital and to Trinity Hospital of Minot, after payment of his debts and funeral expenses. His will named Dr. Fred R. Erenfeld as executor of his estate. Neither of the hospitals was represented at the proceedings in the lower courts, but they were made parties and have appeared on the appeal to this court.

The Clinic filed its claim against the estate in the amount of $19,040.40, pursuant to § 30--18--06 of the North Dakota Century Code. On May 25, 1970, a hearing was held before the Ward County Court with reference to this claim. At the hearing Dr. Erenfeld testified: that he had treated Mr. Texlee periodically since 1941; that he had been a friend of Mr. Texlee; that Mr. Texlee had an open account with the Clinic and had made occasional payments over the years; that the services that he had performed for Mr. Texlee were not gratuitous; and that Mr. Texlee had been critically ill over a period of many years and was 89 years old at the time of his death.

Miss Amy Petersen, the receptionist and bookkeeper for the Clinic, also testified at the hearing. Miss Petersen testified: that she had been employed by the Clinic since 1943; that she recorded the charges and payments made on Mr. Texlee's account; that, prior to December 4, 1958, the Clinic had utilized a ledger book system of accounting; that in 1958 the Clinic converted to an account card system of accounting, and that the balance carried forward from the old bookkeeping system was the first entry in the new account card system; that she sent Mr. Texlee copies each month of his account card which showed the balance due; and that the ledger book record of accounts used by the Clinic prior to 1958 had been destroyed by the 1969 Minot flood.

Copies of the account cards maintained for Mr. Texlee's account were introduced at the hearing. These cards reveal that the balance carried forward from the old ledger book system was $12,779.40; that Mr. Texlee made ten payments during the period between December 1958 and November 21, 1969, the date of his death; and that the balance due and owing to the Clinic at the time of his death was $19,040.40.

The county court disallowed that portion of the claim which related to services rendered to Mr. Texlee prior to December 4, 1958, and the district court affirmed the order of the county court. The issue on appeal is the determination of the amount to be allowed as a claim against the estate of Louis G. Texlee, deceased.

The North Dakota statutes applicable to this case are §§ 28--01--16, 28--01--36, and 30--18--09, N.D.C.C., which provide:

28--01--16, N.D.C.C. 'Actions having six years limitations.--The following actions must be commenced within six years after the cause of action has accrued:

'1. An action upon a contract, obligation, or liability, express or implied, subject to the provisions of sections 28--01--15 and 41--02--104;

. . ..'

28--01--36, N.D.C.C. 'New promise must be in writing in order to extend limitation--Effect of any payment.--No acknowledgment or promise is sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby, but this section shall not alter the effect of any payment of principal or interest.'

30--18--09, N.D.C.C. 'Debts of decedent--Barred claims disallowed.--No claim barred by the statute of limitations at the time of the death of the deceased shall be allowed by the court, either in favor of or against the estate, as a setoff or otherwise. No claim which has been presented against an estate is affected by the statute of limitations pending the proceedings for the settlement of the estate. The running of the statute of limitations shall be suspended following the death of the decedent until a creditor is authorized to apply for letters of administration, but if letters testamentary or letters of administration are not applied for within such period, the statute thereafter shall continue to run until a petition is filed.'

The first question for the court to consider is the type of account which is involved in this case. In Hansen v. Fettig, 179 N.W.2d 739, 741 (N.D.1970), at paragraph 2 of the syllabus, this court stated:

'An account consisting only of charges on one side and payments on the other is not a mutual account.'

Since the account in the case at bar consisted only of charges on one side and payments on the other, we find that this is not a mutual account.

Our interpretation of § 28--01--36, N.D.C.C., in Hansen v. Fettig, Supra, leads us to the conclusion that this is not an account stated, since there was no written acknowledgment of or promise to pay the debt.

Having determined that this is not a mutual account or an account stated, we accordingly conclude that this is a simple open account. On a simple open account the statute of limitations runs from the date of each item. 1 Am.Jur.2d, Accounts and Accounting § 15, p. 387. It is clear then that the six-year statute of limitations commenced to run from the date that Dr. Erenfeld performed each particular service for Mr. Texlee. Unless some event occurred which tolled the statute of limitations, the only services for which Dr. Erenfeld can collect are those services which were performed within the six years prior to November 21, 1969, the date of Mr. Texlee's death. § 30--18--09, N.D.C.C. We next must consider whether any event occurred which tolled the statute of limitations.

A review of the record reveals that there is no evidence of an acknowledgment or promise in writing which would create an account stated. However, Dr. Erenfeld argues that part payment on a simple open account in itself tolls the statute of limitations. Dr. Erenfeld's argument is untenable in view of our decision in Hansen v. Fettig, Supra, which holds that part payment on a simple open account without a written acknowledgment or promise does not toll the statute of limitations. The decision in the case of Roles v. Roles, 58 N.D. 310, 225 N.W. 809 (1929), is distinguished from the case at bar because the Roles case concerned a part payment on a promissory note.

Dr. Erenfeld contends that the law applicable to regular merchant accounts should not be applied to doctors' accounts, and he cites two cases in support thereof: Lowenstein v. Widdicomb, 52 S.W.2d 1044 (Mo.App.1932), and Hazlip v. Leggett, 14 Miss. (6 Smedes & M) 326 (1846). These cases do not represent a majority view, as a perusal of the Annotation at 99 A.L.R.2d 251 reveals. This court has applied the general statute of limitations to an attorney's account (Burke v. Welo, 49 N.D. 119, 190 N.W. 269 (1922)), and we are of the opinion that the general statute of limitations should also apply to a doctor's account.

Dr. Erenfeld contends that the lower courts should have accepted the balance carried forward from his old ledger book accounting system as satisfactory proof of actual services rendered. The findings of the lower courts that there was not sufficient proof of services rendered prior to 1958 must be afforded appreciable weight and in any event these charges are barred by the six-year statute of limitations.

Since the county court and the district court did not apply the law in the manner set forth in this opinion, this court will compute the amount which should be allowed on Dr. Erenfeld's claim. The evidence shows that the balance due on the account six years prior to Mr. Texlee's death was $15,372.90. Subtracting this figure from the final balance of $19,040.40 of Dr. Erenfeld's account with Texlee produces a figure of $3,667.50. However, Mr. Texlee made payments totaling $601.50 during the last six years of his life and, under our decision in Hansen v. Fettig, Supra, interpreting § 9--12--07, N.D.C.C., Dr. Erenfeld was entitled to apply these payments against the earlier items of the account since Mr. Texlee did not direct how the payments should be applied. Accordingly, the $601.50 should be added to the $3,667.50 figure to arrive at an aggregate figure of $4,269.00, which is the amount which should have been allowed to the Clinic against the Texlee estate.

The judgment as modified...