Jasper Trust Co. v. Lampkin

• Decision Date: 10 June 1909
• Citation: 162 Ala. 388,50 So. 337
• Parties: JASPER TRUST CO. v. LAMPKIN.
• Court: Alabama Supreme Court

50 So. 337

162 Ala. 388

JASPER TRUST CO. v. LAMPKIN.

Supreme Court of Alabama

June 10, 1909

On Rehearing, June 30, 1909.

On Rehearing.

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by the Jasper Trust Company against T. P. Lampkin. There was a directed verdict for defendant, and plaintiff appeals. Affirmed.

The transfer of the judgment referred to as having been made by defendant and his wife is as follows: "State of Alabama Walker County. For and in consideration of the sum of Seven forty eight, and seventy seven, we, N.M. Lampkin and T. P Lampkin, her husband, do hereby assign and transfer unto the Jasper Trust Company, the judgment obtained by N.M. Lampkin against H. J. Gravlee, D. W. Gravelee, and D. H. Gravelee, on the 20th day of February 1905 for $255.81, in the circuit court of Walker county, Alabama, subject to the order given to B. Odom on said judgment, and also all the right, title and interest of said N.M. Lampkin in and to a certain claim now pending in the chancery court of Walker county, Alabama wherein N.M. Lampkin is complainant, and H. J. Gravlee is respondent, in which cause the original bill is filed on the 3rd day of April, 1894, and a decree rendered therein on the 26th day of April, 1895, and also all the claim of the said N.M. Lampkin in and to the promissory note attached as an exhibit to the original bill, in said cause. The transfers of said judgment and said claim being also subject to the lien of Coleman & Bankhead, attorneys for the fees in said cause. When the said Jasper Trust Company collects the money on said judgment in the circuit court, and said claim in the chancery court, after satisfying the said sum of $748.77 with the interest thereon, up to the date of the collection hereof, the said Jasper Trust Company will turn over to the said N.M. Lampkin the excess."

Dated and signed June 1, 1895, by N.M. and T. P. Lampkin.

W. C. Davis and A. F. Fite, for appellant.

Bankhead & Bankhead, for appellee.

SIMPSON J.

All of the counts in the complaint were withdrawn, except the seventh, claiming on an account stated on the 1st day of June, 1895, and the ninth, for money loaned by the plaintiff (appellant) to the defendant (appellee) on the same day. The facts are that, on said 1st day of June, 1895, the defendant was indebted to said plaintiff by four promissory notes, past due, amounting to $574.98, and by an arrangement between plaintiff and defendant the defendant and his wife assigned to the plaintiff a judgment and a decree which belonged to the wife, by a written instrument, which is set out in the statement of this case by the reporter. Defendant's notes were delivered up to him as canceled, and the plaintiff paid to the defendant the difference between the face value of said judgment and decree and the amount due on said notes. On November 28, 1898, defendant's wife filed a bill in the chancery court to set aside the said assignment and transfer of said judgment and decree on the ground that it was void under the married woman's law of the state, and the said court finally rendered a decree granting the relief prayed.

At the time of the commencement of the present suit the original notes, if in existence, would have been barred by the statute of limitations of six years, so the theory of the plaintiff is that the transaction between plaintiff and defendant amounted to an account stated, on which it is entitled to recover. The statute of limitations of six years was pleaded, as well as the general issue. An account stated is correctly defined in the case of Ware v. Manning, 86 Ala. 242, 5 So. 682, as copied in the brief of appellant. This and other cases establish the proposition that it is not necessary that there should be mutual or reciprocal accounts; but if one party holds an account against the other, and a statement of the same is made showing the amount due on a particular day, and the same is agreed by the other party to be correct, and there is a promise, either actual or implied, to pay the same, it amounts to an account stated between the parties. Ware & Cowles v. Dudley, 16 Ala. 742; Loventhal & Son v. Morris, 103 Ala. 332, 15 So. 672; 2 Mayfield's Digest, p. 24 et seq.; 1 Cyc. 364; 1 Am. & Eng. Encyc. Law (2d Ed.) 437.

The first proposition which presents itself is, where one person holds one or more promissory notes against another, and after calculating the interest states the amount due to the other and he assents to the correctness of the amount, does that constitute an account stated between them, so as to authorize the creditor to sue and recover on an account stated, in place of suing on the note? At an early day in England it was held that, where a debt was evidenced by an instrument under seal, a recovery could not be had in an action of assumpsit. One reason seems to be that there is no consideration for the new promise, because the party is already bound by a higher evidence of debt to pay, and the court says: "There must be at least some additional consideration, such as items, for instance, foreign to the articles of agreement, introduced into the account and included within the promise, in order to take the claim founded upon it out of the operation of the agreement or contract under seal; otherwise, the plaintiffs below must be confined to their action of covenant, founded upon the articles of...