Summary
In Davis the instrument read "Due L. Eyler from Sam Davis One Hundred and Fifty $150.00," and was signed by the one acknowledging the obligation.
Summary of this case from Apts. v. Village GreenOpinion
Decided September 27, 1930.
Limitation of actions — Fifteen year limitation — Section 11221, General Code — Written acknowledgment of amount due, signed by debtor.
The fifteen-year period of limitations prescribed by Section 11221, General Code, is applicable to a written instrument reading, "Due L. Eyler from Sam Davis One Hundred and Fifty $150.00," and signed by the one acknowledging the obligation.
ERROR: Court of Appeals for Franklin county.
Messrs. Schanfarber Walsh and Mr. Robert L. Mellman, for plaintiff in error.
Mr. J.L. Porter and Mr. Thomas H. Bennett, for defendant in error.
On October 16, 1929, Eyler filed a suit in the municipal court to recover upon the following:
"November 8, 1920.
"Due L. Eyler from Sam Davis One Hundred and Fifty $150.00.
"Sam Davis."
A demurrer was sustained in the municipal court upon the ground that the cause of action was barred by the six-year statute of limitations. Eyler took the case on error to the court of common pleas, where the judgment of the municipal court was reversed on the ground that the fifteen-year statute of limitations applied and that the action was not barred. Davis prosecutes error to the judgment of the court of common pleas.
The question here is whether the six-year statute or the fifteen-year statute applies. If the six-year statute applies, the action is barred. If the fifteen-year statute applies, then the action is not barred. This question depends upon a reading and interpretation of Sections 11221 and 11222 of the General Code.
Section 11221 provides that: "An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued."
Section 11222 provides that: "An action upon a contract not in writing, express or implied, * * * shall be brought within six years after the cause thereof accrued."
The court of common pleas relied upon the case of William Deering Co. v. Miller, 9 C.C. (N.S.), 392, 19 C.D., 259, affirmed by the Supreme Court without opinion in Wikel v. Deering Co., 64 Ohio St. 548, 61 N.E. 1150.
In that case there was an account stated, and the court held that a promise to pay was necessarily implied.
The instant case is stronger. The written obligation is a duebill. Davis signed the writing acknowledging that there is due Eyler the sum of $150. There is a definite and distinct acknowledgment from the writing itself that Davis owes Eyler the sum of $150, and from that acknowledgment there would be an obligation for the payment thereof. This would follow from the definition of the word "due."
Webster thus defines the word "due:" "That which is due or owed; debt; that which one contracts to pay, or do, to or for another; that which belongs or may be claimed as a right."
We have no hesitancy in finding that there was a valid written obligation from which it may be inferred that Davis owes to Eyler the sum stated.
The judgment of the court of common pleas must therefore be affirmed.
Judgment affirmed.
KUNKLE, P.J., and HORNBECK, J., concur.