Dewees v. Bostwick Lumber & Manufacturing Co.

1. Evidence. Lost writing. Secondary evidence. Where a writing would be competent, if produced, and it be shown that it is lost and cannot be found after diligent search, a witness may testify touching its contents. 2. Open Accounts. Limitation of actions. Where installments of goods were sold, to be paid for sixty days-after delivery, the three years’ statute of limitation will not begin to run against the last item of the account until the expiration of sixty days following the delivery of the goods charged for therein. 3. Receipts. Explanatory evidence. Receipts may be explained by parol testimony, although they recite that they'were given in full settlement between the parties.

From the circuit court of Neshoba county. HoN. James R. Byrd-, Judge. Tbe Bostwick Lumber & Manufacturing Company, a corporation, tbe appellee, was plaintiff iln tbe court below; and Dewees, tbe appellant, was defendant there. From a judgment in plaintiff’s favor tbe defendant appealed to the supreme -court. Tbe Bostick Lumber & Manufacturing Company, appellee, purchased from Dewees, appellant, on sixty days’ time, lumber with which to fill a' contract; the lumber was delivered at various times from October 21, 1905, to and including February 16, 1906; most of it being delivered to appellee by appellant -on appellee’s written orders. • A dispute having arisen between appellant and appellee in tbe matter, appellant gave to appel-lee a written receipt, reading thus: “Feb. 15, 1906. Deceived of tbe Bostick Lumber & Manufacturing Company, in all to date: By check, $350.00; Mdse., $30.95; Mdse., $70.80-; and one check, $169.32. Total, $620.78. Feb. 15, 1906. A. Dewees.” On December 19, 1908, appellant bought from appellee certain goods for $65, and, according to bis testimony, informed Bostick, president of the appellee company, at the time of tbe purchase that he, appellant, did not expect to pay for them,, but would credit appellee’s account with their value. Appel-lee denied that the goods were to be paid by a credit on appellant’s account, and, on March 25, 1909, brought suit against appellant before a justice of tire peace- for the $65. On'April 7th, following, appellant, pleaded set-off, claiming that the Bostick Lumber & Manufacturing Company still owed him $153 for lumber. . Judgment having been rendered by the justice of the peace adversely to the company, it appealed to the circuit court. Appellant sought, on the trial in the circuit court, to testify to the contents of the written orders under which the different deliveries of lumber had been made by him to appellee, but, although he had sworn that the orders had been either burned or lost and that he had made diligent search for them and could not find them, the court refused to admit secondary evidence of tbeir contents. At tbe close of tbe evidence tbe court below peremptorily directed tbe jury to find a verdict in favor of tbe company. It was error not to permit tbe defendant to state tbe contents of tbe orders, be having testified that be bad received sucb orders and that they had been burned. It was shown in evidence that be bad made diligent search through bis file for them. Tbe action was not barred by tbe three year statute of limitation. Tbe account ran for several months, beginning on October 31, 1905, and ending February 16, 1906. Tbe account was for lumber, sold on sixty days’ time. It is apparent that tbe last item would be due on April 14, 1906. Assuming the three year statute of limitation to apply, tbe account would not be barred until April 14, 1909. Now the. suit was. instituted March 25, 1909; summons was served April 1, 1909; and tbe set-off was filed April Y, 1909. It is impossible for tbe account .to have been barred by tbe three-year statute of limitation. Such statute of limitation did not begin to run against any of the account until sixty days from tbe date of tbe last item. Both .parties are merchants or traders, and tbe account was a mutual and open current account. Ahbay v. Hill, 64 Miss. 340. It is contended by appellee that tbe receipt was an acquitance in full. This is wholly untenable, since tbe receipt on its face does not purport to be in full. It says “In all to date,” meaning of course, that there bad been paid so much in all up to that date." It is always permissible to explain or contradict a mere receipt. Tbe giving of this receipt was fully explained by appellant. It cannot therefore be successfully contended that tbe receipt is not open to explanation by parol evidence. In fact, tbe receipt seems to be a mere statement of payments made. Tbe action of the court below in granting a peremptory instruction in behalf of appellee, was correct. Appellant failed: to prove by competent evidence the contents of the orders. The-proof of his receipt of such orders was secondary evidence, it not being definitely shown that he had made such search for the orders as the law requires. He was very reticent in giving-his testimony. The installments of goods were delivered on sixty days’ time.. Appellant is barred by the three years statute of limitation. The account is not a mutual account, hence the rule in Abbay v. Hill, 64 Hiss. 340, does not apply. But even if such statute of limitation did apply, appellant would be and is barred from successful appeal by reason of tire-receipt shown in evidence. This receipt was signed by him and delivered to appellee with full knowledge on appellant’s-part of its contents.