Sims v. Miller

• Decision Date: 23 January 1922
• Docket Number: 94
• Citation: 236 S.W. 828,151 Ark. 377
• Parties: SIMS v. MILLER
• Court: Arkansas Supreme Court

236 S.W. 828

151 Ark. 377

SIMS v. MILLER

No. 94

Supreme Court of Arkansas

January 23, 1922

Appeal from Pulaski Circuit Court, Third Division; A. F. House Judge; affirmed with modification.

Judgment affirmed.

G W. Emerson and uFrauenthal & Johnson, for appellant.

The judgment for costs obtained by appellant against appellee in the Prairie Circuit Court growing out of the same cause of action should have been allowed on appellant's counterclaim. C. & M. Dig. §§ 1195 and 1197; 74 Ark. 224; 134 Ark. 311.

Appellee's suit, which was one on account, was barred by the three-year statute of limitations, the last payment on the account being on October 19, 1911, and the present suit being brought on May 31, 1916. 43 Ark. 275; 17 R. C. L. No. 171; 59. Am. Dec 142; 60 Am. Dec. 253. The present suit was not protected by the suit filed in the Prairie Circuit Court on March 2, 1916, because that suit was still pending and not dismissed for more than five months after bringing of present suit. 73 S.W. 184. An action properly brought and voluntarily dismissed cannot be used to save a subsequent action from the bar of the statute of limitation. 103 N.E. 672; 8 Cranch. 462; 18 N. J. Law, 269; 42 F. 652; 23 Vt. 623; 101 Ia. 266; 22 N.W. 894; 130 Mass. 419.

Appellee did not sue on a written contract, but merely introduced a letter, and the five-year statute does not apply. In any event he is barred by the five-year statute, as such statute would begin to run from the date of the alleged breach of contract sued on. 132 Am. St. 737; 95 N.W. 901; 93 N.W. 137; 75 Am. Dec. 477, which date could not have been later than Oct. 26, 1911. The present action was commenced May 2, 1917, the date the alias summons was served, and not upon the filing of the complaint in Pulaski County, on May 31, 1916. The intervention of a term of court without suing out an alias works a discontinuance of the original service, and the bringing of the suit dates from the issuing of the alias. 53 N.C. 55; 19 N.C. 492; 22 N.W. 915; 81 N.W. 593; 108 N.W. 87. Here two terms were allowed to lapse before the alias was sued out. If, as here, the time constituting the bar be allowed to lapse between the suing out of one process until another, the mere bringing of the suit does not prevent the statute of limitation from running. 3 Bush (66 Ky.) 223. Summons must be issued with the intent that it be served before it will constitute the commencement of suit. 47 Ark. 121; 85 F. 827. Appellant was a non-resident of Pulaski County, and appellee knew service could not be had on him immediately.

The action was barred by the one-year non-suit statute. Repeated successive actions are not warranted or authorized by our nonsuit statute. C. & M. Dig., § 6969. Sec. 190 S.W. 458; 66 S.E. 186; 223 S.W. 734; 90 P. 764.

W. C. Adamson and Mehaffy, Donham & Mehaffy, for appellee.

Appellant's contention that the case was a suit on account is untenable, for the reason that the suit was not tried on that theory in the lower court. 101 Ark. 95. A binding contract of sale may be entered into by letters and telegrams. 95 Ark. 421, and this case falls within sec 6955, C. & M. Digest, and is not barred. The cause of action accrued Oct. 26, 1911, and the present suit was filed May 31, 1916. An action is commenced when the complaint is filed and a summons issued thereon. 104 Ark. 627. The time of service of summons is not regarded. 57 Ark. 459. A stipulation was entered into between the parties that when the suit was field in Pulaski County a summons was given the sheriff for service upon appellant. The suit in Prairie County having been dismissed, the Pulaski Circuit Court had jurisdiction to try the suit pending before it. 22 Ark. 103. Section 6969, C. & M. Dig., does not narrow the period of limitations but extends it. 93 Ark. 215; 107 Ark. 352.

OPINION

MCCULLOCH, C. J.

This litigation grows out of transactions between the parties which began during the month of June, 1911, appellant residing at the town of Hazen, in Prairie County, Arkansas, and was there engaged in the business of selling and shipping hay, and appellees were engaged in business in Chicago, buying and selling hay. The communications between the parties which constitute the contract between them were conducted by letters and telegrams, and by that mode of communication appellant entered into an agreement to sell appellees 50 car-loads of hay of the best quality at a stipulated price, delivered on board cars at Hazen, consigned to appellees at Chicago. Appellant drew drafts on appellees with bills of lading attached, which drafts were paid by appellees through regular banking channels. The shipments were made from time to time during the months of July and August, 1911, at the rate of about six carloads per week. When the first car of hay was received by appellees at Chicago and inspected, they notified appellant that it was in damaged condition and not of the quality specified in the contract, and they made a proposal to appellant in a letter that they would unload the hay and handle the same, "deducting from the proceeds the amount of profits that we have in the original deal," and that they would, in like manner, have each car inspected. Another letter was written on a later date reminding appellant of his failure to respond to the proposal and asking for a reply by wire indicating whether it would be satisfactory to appellant for appellees "to handle the hay as suggested in our letter." Appellant replied by telegraphic message directing appellees to handle the same as indicated in letter. Afterwards, appellant also replied by letter as follows: "We have your favor of the 26th inst. referring to the contract which we have with you. We expect you to handle all hay shipped you until contract is filled, when we will have a final settlement." This was the letter referred to in the telegram. Pursuant to this letter, appellees kept an account of the damaged hay, and they claim that appellant owes them the sum of $ 2,548.25 for the difference between the contract price of the hay and the price it brought on sale in the market at Chicago.

This is an action instituted in the circuit court of Pulaski County by appellees against appellant to recover the amount mentioned above. It was set forth, in substance, in the complaint that appellant contracted in writing with appellees to sell 50 carloads of hay at the stipulated price; that a large quantity of the hay shipped by appellant was in damaged condition and unfit for sale and was not of the quality specified, and that upon appellant being notified of the condition of the hay he agreed that appellees might dispose of the same at the best price obtainable and credit the amount of the proceeds to appellant's account against the amount paid him on the drafts drawn with bills of lading attached. It is alleged in the complaint that appellees sold the damaged hay at the best obtainable market price and credited the same to appellant's account with them, leaving a balance of indebtedness on the part of appellant in the sum of $ 2,548.25, recovery of which is sought, with interest and costs.

Appellant filed a motion to require appellees to make the complaint more definite and certain by stating whether or not the contract was oral or in writing, and, if in writing, that appellees be required to file a copy. Appellees filed an amended complaint setting forth the statement that the contract between the parties was in writing, but consisted of numerous letters and telegrams between the parties, copies of which were in possession of appellant, and that some of the originals were in his possession, and that it was impracticable to file all of the correspondence with the complaint.

The case was tried before a jury, and the trial resulted in a verdict in favor of appellees for the sum of $ 2,500.

Appellant pleaded, in addition to other defenses, the statute of limitation in bar of the right of appellees to recover, and it is insisted here that according to the undisputed evidence the plea should have been sustained.

The question first arising is which one of the statutes of limitation is applicable to this case, whether it is the one which provides that all actions founded on contract not in writing shall be commenced within three years after the cause of action shall accrue (Crawford & Moses' Digest, § 6950), or the one which provides that action on written instruments shall be commenced within five years after the cause of action shall accrue. The complaint sets forth a written contract as the basis of the cause of action. The account is exhibited as a specification or bill of particulars of the items constituting the amount due under the contract. The various written communications between the parties, when read together, constituted a written contract and they contained all of the terms of the sale. Mann v. Urquhart, 89 Ark. 239, 116 S.W. 219; Emerson v. Stevens Grocer Co. 95 Ark. 421, 130 S.W. 541. Our conclusion is that the five-year statute applies, for the action is one based on a written contract complete in its terms, the account filed being a mere specification of the items. Friend v. Smith Gin Co., 59 Ark. 86, 26 S.W. 374; Railway Co. v. James, 78 Ark. 490; Vicksburg Waterworks Co. v. Yazoo & M. V. R. Co., 102 Miss. 504, 59 So. 825. The right of action might have been based upon the account, and the various written communications between the parties could have been used as evidence to establish the right to recover. In that event the action would be one upon account and governed by the three-year statute of limitation; but the right of action could be, and has been, based on the written contract, which makes the five-year statute applicable. It is a matter of pleading, and ...