The Pascagoula democrat-star. (Pascagoula, Miss.) 1878-1920, 1880-07-23
Supreme Court Decisions.
APRIL TERM, 1880.

hlChAhD r. AbbEfi
VS.. NO.o44S.
G. W. OWEN, Admir- ct al.
Error to the circuit court of
Tunica county, Hon. Samuel Pow
ell, judge.
Suit was commenced July 20,
1876, against Richard f. Abbey,
OH a merchants open account, the
items of which ran from January
3, 1873, to October 4, 1873, amount
ing to near 800. Upon it, defend
ant was credited with several cash
payments; and for wood, 81 80,
drive well and pump, $40, and pip
ing 90 16. These credits dated
along in the spring OF 1873, the last
item being more than three years
before the suit was brought. The
statute of limitations OF three
years was iuterposed, with the
general issue.
The account was proven, and
plaintiffs introduced defendant Alb
hey, who testified: "That the
credits on the account were cor.
rect; that he had let plaintiffs have
them at the time set forth in said
account; that he was II farmer and
not "a merchant at the lime the &C.
count was being made; that he
had no mutual dealings, or other
dealings with plaintiffs, except as
shown in the account"
This was all the evidence.
Plaintiffs recovered judgment
for the full amount of the account
less the credits. Section 2l64,
code 1871, is as follows: "In all
actions of debt or assumpsit
brought to recover the balance due
upon mutual aud open current ac'
count, the cause OF action shall be
deemed to hRe accrued at the
time of the true date of the last
item proved in such account"
The only question is, as to wheth'
er the account sued on comes with
in the terms of this statute.
Held
/. The cash payments did not
have the effect to create u mutual
account between the parties.
2. Ii is otherwise with reference
to the personal property sold or de.
llverrL by the defendant to plain
titfs. Where there has been such
a sale or delivery, unless it is
shown to have been attended aud
accepted as a payment upon the
account, Il right OF action accrucs
on behalf of defendant for the
price; and this constitutes the
mutual accounts contemplated by
the statute. Delivery of single
article by the debtor has been held
sufficient. 3 Met, Mass. PIG.
3. 1t must be shown that upon
both sides of the account there are
items of Indebtedness which ac
crued within the time prescribed by
the statute for bringing the suit.
4. The mutual dealings will MOI
have the effect of reviving liability
as to items fully barred at the dat
of such dealing. The cross demand
upon the part of the defendan
will operate to draw to the last itel
of the mutual account, such item
only as were not barred at the dat
of the origin of the cross demand
5. In the case at bar none OF tn
items OF plaintiffs account wer
barred at the date of the deliver.
of the articles furnished by defend
ants; but such delivery was no
within three years next before tn
institution of the suit. So long a
the defendant continued to max
charges be admitted an open at
count, but when he ceased to max
charges the account ceased to be
mutual one. UHttCh OS' LTtHooeO"j L
N. J. Law) 545.
8. As there were no items on bot
sides of the account within thre
; years before the institution of th
suit, there were not mutual ope
accounts current between the pa
ties, and plaintiff was entitled I
; Judgment only for those items {
7 the account which accrued With
} the three years before suit wa
, brought. Reversed.
Opinion By Chalmers j.
Greer u Adams, for plaintiff
!, error.
Z Calvin Perkins. contra.