M. G. Travis & Co. v. Mosley

• Decision Date: 21 November 1927
• Docket Number: 26668
• Parties: M. G. TRAVIS & CO. v. MOSLEY. [*]
• Court: Mississippi Supreme Court

114 So. 628

148 Miss. 368

M. G. TRAVIS & CO. v. MOSLEY. ^[*]

No. 26668

Supreme Court of Mississippi

November 21, 1927

Division A

APPEAL from circuit court of Wayne county.

HON. J D. FATHEREE, Judge.

Suit by M. G. Travis & Co. against M. C. Mosley. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Hon. J Madison Travis and Hon. C. F. Travis for appellant.

The court erred in granting appellee peremptory instruction. The evidence leads to the conclusion that the account sued upon was a mutual and open current account where both parties were merchants or traders at the time the account was made and a cause of action did not accrue until the time of the true date of the last item became due and payable. The lawmakers intended by express language or by implication that the statute of limitations on accounts of merchants for goods, wares and merchandise sold to their customers should prevent a multitude of suits. Graham McNeil Co. v. Scarbrough, 135 Miss. 59, 99 So. 502. The said account was a mutual and open current account and the appellee was a trader, having brought merchandise and paid for same partly in cash, sold cotton for market, oxen, horses and other live stock for commercial purposes and the payments therefor by agreement being made on the said running, open, and current account, and on account of said mutual dealings the statute of limitations did not run on the account or any part thereof as suit was filed within three years from the true date of the last items charged. Abbay v. Hill, 64 Miss. 340, 1 So. 484. By general custom and contract, express and implied, the items of the account did not become due until October 1st of each year. Hunter v. Wilkinson, 44 Miss. 721; Effinger v. Henderson, 33 Miss. 449.

The courts of our country have laid down a general rule, that payments made on open account, neither party applying them to any particular item, should be applied by the court to the oldest items of the account. Fletcher v. Gillian, 62 Miss. 8; Duffy v. Kilroe, 116 Miss. 7, 76 So. 681; Reid Bros. v. Todd (Ala.), 95 So. 276; Harman & Stringfellow v. Legrande (La.), 91 So. 726; Bell v. Bell, (Ala.), 56 So. 926; Brown v. Larry (Ala.), 44 So. 841; Sleet v. Sleet (La.), 33 So. 322; Honeye v. Henkel (La.), 40 So. 460; Lazarus v. Friedheim, 51 Ark. 371; Molaskey v. Peery, 76 Cal. 84; Lippman v. Boals, 16 Lea 283; National Park Bank v. Sea Board Bank, 114 N.Y. 28; Union National Bank v. Cleveland, 10 O. 222, 30 Cyc. 1244.

Hon. A. G. Busby, for appellee.

Appellant contends that the account sued upon was a mutual and open current account, and that both parties were merchants or traders, because appellee sold to appellant cotton and other goods at a certain price to be applied to his account, and cites Abbay v. Hill, 64 Miss. 340, 1 So. 484, to support this contention. In the case cited it was not true that the cotton was sold to Hill, Fontane & Company, but it was delivered to them to sell for Abbay and the proceeds to be accounted for. In the case at bar appellee sold to appellant, the cotton and other goods at a certain price to be credited to his account; therefore the case cited by appellant himself shows thoroughly that it was not a mutual and current account, but an open account.

The appellant further contends that by general custom and contract, express and implied, that the items of the account did not become due until October 1st of each year. We contend that there was no custom proven; all the attempt made by appellant to prove a custom was by Mr. G. B. Travis, in answer to a question by his attorney he answers as follows: "Yes I knew the general custom. No account was due until the fall. Mr. Mosley's account was not due until then, we didn't send him a statement until fall."

Argued orally by Cecil M. Travis, for appellant.

OPINION

COOK, J.

On the 17th day of August, 1926, the appellant, M. G. Travis & Co., filed this suit in the circuit court of Wayne county against the appellee for a balance of five hundred twenty dollars, alleged to be due on an open account. The first item charged on the account bears the date of January, 1920, while the last item is dated September 5, 1923. The account has several credits thereon, including the value of three bales of cotton and certain live stock sold and delivered to the appellant, all of these credits being dated in the year 1922, except one for twenty-five dollars cash, which is dated October 13, 1926.

The appellee filed an affidavit denying the items of the account, and also pleaded payment and the three-year statute of limitations. At the conclusion of the testimony, the appellee made a motion for a peremptory instruction on the ground that the account sued on and offered in evidence shows that all items thereon, except two aggregating three dollars and twenty-five cents, were barred by the statute of limitations, and the credit of twenty-five dollars on October 13, 1926, overpaid the items which were not barred. This motion was sustained; in response to the peremptory instruction, the jury returned a verdict for the defendant; and from a judgment entered in pursuance of that verdict, this appeal was prosecuted.

Section 3099, Code of 1906 (section 2637, Hemingway's Code 1927, provides that:

"Actions on an open account or stated account not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after."

While section 3100, Code of 1906 (section 2638, Hemingway's Code 1927), which fixes the time when the statute begins to run on open accounts, provides that:

"In all actions brought to recover the balance due upon a mutual and open current account, where both parties are merchants or traders, the cause of action shall be deemed to have accrued at the time of the true date of the last item proved in such account; and in all other actions upon open accounts, the period of limitation shall commence to run against the several items thereof from the dates at which the same respectively became due and payable."

The appellant contends that, since the appellee purchased merchandise and paid for the same partly with cash and...