Morton v. Leslie
| Decision Date | 08 July 1939 |
| Docket Number | 34262. |
| Citation | 92 P.2d 90,150 Kan. 213 |
| Parties | MORTON et al. v. LESLIE. |
| Court | Kansas Supreme Court |
Rehearing Denied Sept. 18, 1939.
Syllabus by the Court.
Under statute providing that when written acknowledgment of or promise to pay existing liability, debt, or claim has been made, an action may be brought within period prescribed for bringing such an action, a written statement of indebtedness in which debtor acknowledged and agreed to pay existing account, started anew the three-year statute of limitations on the account, and the five-year statute of limitations did not apply. Gen.St.1935, 60-306, 60-312.
A written statement of indebtedness, in which the debtor acknowledged and agreed to pay an existing account, is examined and it is held, that under G.S.1935, 60-312, the statement started anew the three-year statute of limitations upon the account.
Appeal from District Court, Kingman County; Geo. L. Hay, Judge.
Action by Charles Morton and E. W. Strong, as administrators of the estate of Dr. J. B. Morton, deceased, against Belle Leslie on a statement of indebtedness. From a judgment in favor of the defendant, the plaintiffs appeal.
Judgment affirmed.
S. S Alexander and T. M. Flick, both of Kingman, for appellants.
Paul R Wunsch, of Kingman, for appellee.
This was an action on a "statement of indebtedness." The trial court sustained a demurrer to the petition. Plaintiffs have appealed.
The question presented is whether the three-year or the five-year statute of limitations applies. We are told the specific question presented is new in this state, and this reminds us of the language used by Chief Justice Crozier in Searle v. Adams, 3 Kan. 515, 518, 89 Am.Dec. 598, when in August, 1866, upon a "day of wilted collars and oily butter," he marveled that a new question should arise under the statute of limitations.
The petition filed August 5, 1938, alleges that Dr. J. B. Morton died in Kingman county February 4, 1933, and that plaintiffs were duly appointed and qualified as administrators of his estate, and have continued to act as such; that at the time of his death defendant was owing him an open account for medicine and medical services in the sum of $373.50; that thereafter and on September 1, 1933, defendant, for a valuable consideration, executed and delivered to plaintiffs an instrument in writing of which the following is a copy:
It is further alleged that defendant had neglected and refused, on demand, to pay such indebtedness and there was due thereon the sum of $496.75, with interest, for which sum judgment was prayed. The demurrer was upon the ground that the petition failed to state a cause of action, and particularly that it shows upon its face that the purported cause of action is barred by the statute of limitations.
It will be observed the action was brought more than three years but less than five years after the statement of indebtedness was executed. G. S. 1935, 60-306, provides that civil actions other than for the recovery of real property can only be brought within five years upon any agreement, contract, or promise in writing, and within three years upon a contract, not in writing, express or implied.
Appellants argue that since the instrument sued upon is in writing and contains within it an agreement to pay it is governed by the five-year clause of G. S. 1935, 60-306. In their brief they express uncertainty as to how this instrument should be classified--whether it should be regarded as a non-negotiable note, or whether it should be regarded as an account stated. In support of the first view appellants stress the phrase "agrees to pay." This does not differentiate it from an account stated, which always contains an express or implied promise to pay. Perhaps the instrument may be classified as an account stated. Obviously the amount due was agreed upon, hence the items which go to make up the account are no longer important, unless error should be discovered. It was agreed that any error in the account is to be corrected, but an agreement to correct errors in the account does not prevent it from being an account stated. 1 C.J.S. Account Stated, § 24, p. 704. The promise to pay an account rendered converts it into an account stated. 1 C.J.S., Account Stated,§ 34, p. 713. Ordinarily the statute of limitations on an account stated is three years. Kansas City Title & Trust...
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O'MALLEY v. Frazier
...period of limitations which would have been applicable had an action been brought on the original debt or claim. See Morton v. Leslie, 150 Kan. 213, 215, 92 P.2d 90 (1939) (citing G.S. 1935, 60-312, the predecessor of K.S.A. 60-520[a]). The statute provides no means for reviving one part of......
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Wilson v. Evans
...barred not having been begun until more than ten years after the making of the instrument. It would seem that the cases of Morton v. Leslie, 150 Kan. 213, 92 P.2d 90; and Fairbanks v. Koelling, 167 Kan. 361, 205 P.2d 930, are quite distinguishable from the other cases. In neither of these c......
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Hirt v. Bucklin State Bank of Bucklin
...five years. Regarding Exhibit B as a simple account stated the action could be begun within three years from its date. In Morton v. Leslie, 150 Kan. 213, 92 P.2d 90, was held: "A written statement of indebtedness, in which the debtor acknowledged and agreed to pay an existing account, is ex......