The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1880-06-23
SUPREME COURT DECISIONS.
Reported for The Clarion by I. Brame, Attor-
ney-at-Law. Jackson, Miss.
APRIL TERM. 1850
RICHARD F. ABBEY,

All "A''D y. 0'' No. 844s.
q. ". OWEN. ADM EFT Al.
Error to the Circuit Court Tuniea county,
Hon. Samuel Powell, Judge.
Suit was commenced July Is. 1876, against
Richard F. Abbey, on a merchants open &C
count. the items Of which ran from January 3,
1878, to October 4, 1873, amounting TO near
500 co. Upon IT, defendant was credited with
several cash payments; and for wood, 81 90
drive well and pump, Slo 90, and piping
So is. 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 interposed
with the general issue.
The account was proven, and plaintiffs in
troduced defendant Abbey, who testified:
That the credits on the account were correct ;
that he had let plaintiffs have them at the
time set forth in said account; that he was a
farmer and not merchant at the time the ac-
count was being made; that he had no mutual
dealings or other dealings with plaintiffs,
except shown in the account
This all the evidence.
Plaintiffs recovered Judgment for the full
amount Of the account less the credits Section
2l64, Code 1871, is as follows: I'm all actions
balance due upon mutual and open current
account, the cause Of action shall be deemed
to have accrued at the time OF the true date of
the last item proved in such account"
The only question Is. as 70 whether the ac-
count sued on comes within the terms of this
statute.
Held
l. The cash payments did not have the effect
to create mutual account between the par
ties.
2 1t is otherwise with reference to the per
sonal property sold or delivered by the de-
PENDANT to plaintiffs. Where there has been
such a sale or delivery, unless it is shown to
have been intended and accepted a n pay
ment upon the account a right of action ac-
crues on behalf of defendant Tor the price and
this constitutes the mutual accounts contem-
plated by the statute. Delivery of single
article by the debtor has been held sufficient.
Met Mass. 2I6.
3. 1t must be shown that upon both sides Of
the account there are items Of Indebtedness
which accrued within the time prescribed by
the statute Tor bringing the suit.
4. The mutual dealings viii not have the eff
feet of reviving liability as to items fully
barred at the date of such dealing. The cross
demand upon the part of the defendant will
operate 10 draw 10 the last item of the mutual
account, such Items only were not barred
at the date of he origin of the cross demand
.. In the case At bar none of the items of
plaintiffs account were barred at the date of
the delivery Of the articles furnished BY de-
PENDANTS ; bat such delivery was not within
three years next before the in stitut0m Of the
suit. SO long the defendant continued to
make charges he admitted open account,
but when he ceased to make charges the ac-
count ceased to be a mutual one. Quick u.s.
PriHcetoH IA n. J. (Law) 545
s. As there were no items on both sides Of
the account within three years before the in
stitution of the suit. there were not mufuaI
open accounts current between the parties, and
plaintiff was entitled 10 Judgment only for
those items of the account which accrued with
in the three years before suit was brought
-RererSed
Opinion by CHALMERS, J,
Greer & Adams, for plaintiff in error
Calvin Perkins, contra.
To be reported.