Seaboard Burner Corp. v. De Long
| Decision Date | 13 May 1958 |
| Citation | 145 Conn. 300,141 A.2d 642 |
| Court | Connecticut Supreme Court |
| Parties | The SEABOARD BURNER CORPORATION v. Mary DE LONG. Supreme Court of Errors of Connecticut |
T. Holmes Bracken, New Haven, for appellant (plaintiff).
William T. Holleran, New Haven, with whom was Herbert D. Fischer, West Haven, for appellee (defendant).
Before BALDWIN, DALY, KING, MURPHY and MELLITZ, * JJ.
The plaintiff brought this action to recover the price of goods sold and its charge for service rendered. The court rendered judgment for the defendant. From that judgment the plaintiff has appealed.
The court found the following facts: On May 3, 1945, the plaintiff was engaged in the business of selling and installing hot-water heaters. On that date the defendant ordered, and the plaintiff installed in her premises, a heater for which she agreed to pay $367.84. On May 10, 1945, the plaintiff submitted to the defendant a bill of $381.90 for the installed heater, $14.06 more than the agreed price, and demanded that the defendant and her husband then pay $127.30, or one-third of $381.90, and execute a promissory note for $267.33, the total of $254.60, or two-thirds of $381.90, and $12.73, interest for one year on $254.60. The defendant and her husband refused to make the demanded down payment and to sign the note, claiming that they were being overcharged. On March 3, 1946, the plaintiff serviced the heater, and the charge for it was $3. On that date and on May 1, 1946, the plaintiff billed the defendant in the amount of $370.84, the total of the agreed price of the installed heater, $367.84, and $3, the service charge. After May 3, 1945, the defendant did not promise to pay the plaintiff for the installed heater, and after March 3, 1946, she made no promise to pay the charge for the service rendered on that day. The defendant made no payment to the plaintiff.
The writ and complaint, dated August 22, 1952, was served on the defendant on August 25, 1952. The defendant, in her answer, denied the allegations contained in the complaint, and in a special defense she averred that the debt was barred by the Statute of Limitations. The plaintiff, in its reply to the special defense, alleged that the defendant had within six years prior to the date upon which the action was brought made repeated promises to pay the plaintiff. The defendant denied this allegation. The plaintiff now admits that there was no evidence to support the affirmative allegation contained in its reply.
The court concluded that the burden of proving facts sufficient to remove the bar of the Statute of Limitations was upon the plaintiff; that the cause of action to recover the agreed price for the installed heater accrued on May 3, 1945; that the cause of action for the recovery of the charge for servicing the heater accrued on March 3, 1946; that after May 3, 1945, there was no unequivocal acknowledgment by the defendant of the debt due for the heater; that after March 3, 1946, there was no unequivocal acknowledgment by the defendant of the debt due for servicing the heater; and that the debts were barred by the Statute of Limitations.
The plaintiff maintains that the court erred in reaching its conclusions. Section 8315 of the General Statutes provides that '[n]o action for an account, or for a debt due by book to balance book accounts, or on any simple or implied contract * * * shall be brought but within six years next after the right of action shall accrue.' The date of service of the writ upon the defendant was August 25, 1952. 'From a very early date in this state the time when the action is regarded as having been brought is the date of service of the writ upon the defendant.' Consolidated Motor Lines, Inc., v. M & M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621, 622....
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...App. 340, A.2d (1990). 26. 20 Conn. App. 705, A.2d (1990). 27. 1990 Conn. Acts 90-288 (Reg. Sess.). 28. Seaboard Burner Corp v. DeLong,145 Conn. 300,141 A.2d 842 (1958) and Hubbard v. Planning Commission, 151 Conn. 289, 198 A.2d 760 (1983). 29. 1990 Conn. Acts 90-239 (Reg. Sess.). ...