{
  "id": 8654332,
  "name": "McKINNIE BROTHERS COMPANY v. WILLIE F. WESTER",
  "name_abbreviation": "McKinnie Bros. v. Wester",
  "decision_date": "1924-11-05",
  "docket_number": "",
  "first_page": "514",
  "last_page": "516",
  "citations": [
    {
      "type": "official",
      "cite": "188 N.C. 514"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "176 N. C., 629",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8657352
      ],
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        "/nc/176/0629-01"
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  "last_updated": "2023-07-14T18:44:41.585516+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "McKINNIE BROTHERS COMPANY v. WILLIE F. WESTER."
    ],
    "opinions": [
      {
        "text": "Connor, J.\nThe court instructed the jury as follows: \u201cIf you believe all the evidence you will answer the second issue 'No.\u2019 \u201d\nOn 25 November, 1919, plaintiff and defendant exchanged wagons, defendant agreeing to pay \u201cboot money.\u201d There was a controversy between the parties, at the trial, as to the amount to be paid, but the jury has found that defendant agreed to pay $105, as contended by plaintiffs. Defendant testified and contended that the jury should find, from the evidence, that he paid the \u201cboot money,\u201d the next day after the trade, in accordance with the agreement, but the jury has found that defendant has not paid this money and that he is still indebted to plaintiffs in the sum of $105, and judgment has been rendered against defendant for this sum, with interest from the date of the trade.\nOn 13 July, 1920, plaintiff sold to defendant two trucks and charged defendant, on their books, $30, the purchase price of the trucks. On 10 November, 1920, plaintiff credited defendant with $30, which defendant contends he paid by check, on which were written the words \u201cfor trucks.\u201d Defendant contends' that this sum was paid for the trucks and not on an account.\nOn 15 March, 1921, defendant bought of plaintiffs four barrels of flour for $43, and on said date paid this sum to plaintiffs, who credited defendant on their books, with same. On 11 March, 1921, the flour was delivered to defendant, and a debit for $43 \u201cto 4 bbls. flour\u201d was entered on plaintiff\u2019s books, thus balancing the credit item for this sum, leaving a balance of $105, the sum charged defendant on 25 November, 1919, \u201cdifference in wagon trade.\u201d These were the only transactions between plaintiffs and defendant from 25 November, 1919, to the date of the summons in this action, to wit, 11 June, 1923.\nPlaintiffs contend that these transactions, entered on their books, show \u00e1 course of dealing which constitutes a mutual, open and current account, and that by C. S., 421, the cause of action upon the balance due accrued at the date of the last item, to wit, 17 March, 1921, and is therefore not barred by the statute of limitations: C. S., 441 (1).\nDefendant contends that these transactions were separate and distinct, each being unrelated to and disconnected from the others; that the cause of action upon the amount due for \u201cdifference in the wagon trade,\u201d to wit, $105, accrued on 25 November, 1919, and was therefore barred by the three years statute of limitations on 11 June, 1923, the date of the summons.\nDefendants testified that on the date of the wagon trade, he told Mr. McKinnie that he had the money at home, and would bring it to' him the next day \u2014 that he did so \u2014 and that when he paid the money to Mr. McKinnie the latter told him that no receipt was necessary as it was a cash transaction. Defendant further testified that all his transactions with plaintiff were on a cash basis. Each credit in the statement offered in evidence by plaintiffs, which is a copy from their books, is for the exact amount of a debit item, and the balance due is the exact amount charged on 25 November, 1919, as amount due for \u201cboot money.\u201d\nThere is evidence sustaining the contentions of plaintiffs; there is evidence sustaining the contention of defendant. There is error in the instruction to the jury that if they believed all the evidence, they should answer the second issue \u201cNo.\u201d\nThis Court has defined in Hollingsworth v. Allen, 176 N. C., 629, a \u201cmutual, open and current account,\u201d within the meaning of C. S., 421. It is only where there is an understanding or agreement, express or implied, from the nature of the dealings between the parties, that the items of an account shall be applied as payments upon other items, arising out of transactions that are related to each other and not disconnected, that the cause of action, for the balance due, accrues at the date of the last item. The account must be mutual \u2014 thattis, involving reciprocal rights and liabilities; open \u2014 that is, contemplate further dealings between the parties; and current \u2014 that is, running with no time limitations fixed by agreement, express or implied, with the balance to be determined by an' adjustment of credit and debit items; C. S., 421, applies only to such an account.\nThere must be a\nNew trial.",
        "type": "majority",
        "author": "Connor, J."
      }
    ],
    "attorneys": [
      "8. A. Newell for plaintiffs.",
      "Ben T. Holden and Edward F. Griffin for defendant."
    ],
    "corrections": "",
    "head_matter": "McKINNIE BROTHERS COMPANY v. WILLIE F. WESTER.\n(Filed 5 November, 1924.)\nLimitation of Actions \u2014 Mutual Accounts \u2014 Directing Verdict \u2014 Evidence.\nTo bar an action to recover for goods sold and delivered under the provisions of O. S., 421, the two accounts must be mutual or reciprocal, open or continuous, and current, or no time limit fixed by agreement, express or implied, with the balance to be determined by an adjustment of credit and debit; and when there is conflicting evidence as to whether the item sued on was so related to other items upon which the defendant relied it is reversible error for the judge to direct a verdict thereon if the jury believe the evidence.\nAppeal by defendant from Grady, J., at February Term, 1924, of FRANKLIN.\nThe jury answered the issues submitted to them as follows :\n1. In what amount, if any, is defendant indebted to plaintiffs? Answer: $105 with interest.\n2. Is plaintiff\u2019s cause of action barred by the statute of limitations? Answer: No.\nFrom judgment in favor of plaintiff and against defendant for $105 with interest from 25 November, 1919, defendant appealed. Defendant\u2019s only exception is to the instruction of the Court upon the second issue.\n8. A. Newell for plaintiffs.\nBen T. Holden and Edward F. Griffin for defendant."
  },
  "file_name": "0514-01",
  "first_page_order": 584,
  "last_page_order": 586
}