McCall v. Nave

Citations

• 52 Miss. 494

Syllabus

<p>'•I. Accord and Satisfaction.</p> <p>In law there is no objection to an agreement on the one side to pay, and on the other to accept, a sum of money less than that claimed by the creditor in satisfaction of a disputed balance, and when the debtor pays the original debt is discharged.</p> <p>:-2. Account Stated : Characteristics thereof. Testimony.</p> <p>. It is the consent of the defendant to the balance claimed that imparts to an account the character of an account stated. This assent may be implied from circumstances, such as the receipt by one merchant of an account from another without objections, etc. It is competent for the.defendant to take from the account sued on the character of an account stated, which the testimony of the plaintiff conduces to give to it. In declaring upon an account stated it is not necessary to set forth the subject-matter of the original debt.</p> <p>•3. Same : Statute of limitations.</p> <p>There are two features to the statute of limitations — the one having reference to the form of the action, the other to the cause of action. In most cases the cause of action, or subject-matter, determines the limitation, and it is not affected by the form of action.</p> <p>■4. Open Account : Account stated. Evidence.</p> <p>The liability upon an open account and account stated is distinct, and the proof is different. In the one case it arises from the sale and delivery of the goods, and in evidence that fact and the value completes the right to recover. In the other the liability arises from the in simul computassent and the promise to pay the sum found due, whether express or implied. In evidence it would be irrelevant to go back into an investigation of the subject-matter and origin of the indebtedness. The indebitatus count gives no notice that evidence will be offered to prove an account stated.</p>