Rogers v. Newton

• Decision Date: 07 November 1904
• Parties: ROGERS et al. v. NEWTON.
• Court: New Jersey Supreme Court

58 A. 1100

71 N.J.L. 469

ROGERS et al.

v. NEWTON.

Supreme Court of New Jersey.

Nov. 7, 1904.

(Syllabus by the Court.)

Appeal from District Court of New Brunswick.

Action by James L. Rogers and others against James O. Newton. Judgment for defendant, and plaintiffs appeal. Affirmed.

Argued June term, 1904, before REED and FORT, JJ.

A. & H. T. Strong, for appellants.

James H. Van Cleef, for respondent.

FORT, J. This was a suit to recover for an undertaker's bill. The bill was incurred in the burial of the daughter-in-law of the defendant. The materials were furnished and the services rendered in 1894. The proof shows that in 1890 $10 was paid upon account of the bill, but by whom it was paid it does not appear. It was claimed in the cause that the defendant had contracted the bill, and that the plaintiffs did the work relying upon the defendant's promise to pay therefor.

This, however, was denied by the defendant. The suit was not instituted until 1901. It was alleged that there had been made by the defendant an oral promise to pay the bill in 1896. No promise in writing was shown or alleged. The proof in the cause does not bring the case within the rule stated in Romaine v. Corlies, 47 N. J. Law, 108. A simple payment upon a book account, which has never been recognized as to its entirety, without something to show that such payment was made in recognition of the whole claim, and that it was made as a payment on account of the whole claim, will not take the unpaid part of the account out of the statute. Vaughn v. Hunkinson's Adm'r, 35 N. J. Law, 79. The charge of the Judge of the district court in this case correctly stated the law. The Jury found for the defendant under the proof, and, we think, rightly. The trial judge would have been justified, Under the proof certified, in directing a verdict for the defendant on the ground that the plaintiffs' claim was barred by the statute of limitations. He, however, submitted all the questions in the case to the jury under proper instructions, and they found for the defendant.

The judgment of the district court is affirmed, with costs.