King v. Davis

• Decision Date: 01 March 1897
• Citation: 168 Mass. 133,46 N.E. 418
• Parties: KING v. DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 133

46 N.E. 418

KING v. DAVIS.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1897

COUNSEL

J.A. Stockwell, for plaintiff.

Freeman Hunt, for defendant.

OPINION

LATHROP, J.

This is an action on an account stated. It appears from the evidence reported that the defendant had been a tenant of the plaintiff, and was in arrears for his rent, though he had made some payments on account. About the time he left the plaintiff's house, the agent of the plaintiff called upon him, taking with him a written statement of their mutual accounts, and showing a balance due of $263.91. After some conversation, the defendant wrote on the paper, underneath the account, the following: "The above statement is correct, and I owe the balance as above due. John M. Davis, June 13, 1887." The only item of the account rendered which is dated is the last one on the debit side, and the date of this is April 20, 1887. The writ is dated June 10, 1893. The judge, who tried the case without a jury, found and ordered judgment for the plaintiff; and the case comes before us on the defendant's exception to the refusal of the judge to rule that the plaintiff's claim was barred by the statute of limitations. The defendant first contends that the action is not brought within six years from the last item of the debit account, and is therefore barred by Pub.St. c. 197, § 1, cl. 1. But this is not an action upon the original items, but upon the account stated, and the action is brought within six years from the date when this cause of action accrued. An account stated gives a new and original cause of action, and the statute of limitations begins to run only from its date. Chace v. Trafford, 116 Mass. 529.

The remaining question is whether there is a sufficient acknowledgment or promise in writing, within Pub.St. c. 197, § 15. This question has so recently been considered by us in the case of Custy v. Donlan, 159 Mass. 245, 34 N.E. 360, that we need only to say that the question must be answered in the affirmative. Exceptions overruled.