#### JONATHAN PHILLIPS v. G. N. PENLAND, Executor.

(Filed 2 January, 1929.)

1. Account, Action On — Nature of Mutual, Open, and Current Account— Running Account — Contracts—Services Rendered.

An indefinite promise to pay intermittently from time to time for such services as may be rendered by one party to another is not a mutual, open, and current account with reciprocal demands between the parties within the perview of C. S., 421.

2. Executors and Administrators — Allowance and Payment of Claims— Claims for Services Rendered Decedent — Limitation of Actions.

Under an agreement with decedent to pay for services to be irregularly rendered from time to time as needed without a definite time fixed for payment, but under a general promise to pay for them, in an action against the' administrator of the deceased promissor for the value of such services: Held, a payment made by the deceased In 1925, intended by him to be made upon the debt, will have the effect of reviving the claim against the statute of limitations only for the three years next preceding his death in 1926, subject to the credit of the payment so made.

Civil actioN, before MacBae, Special Judge, at April Term, 1928, of MACON.

H. P. Penland died about October, 1926, and the defendant was duly appointed executor of the estate of said deceased on 12 November, 1926.

The plaintiff alleged that in 1916, the deceased suffered an injury, and as a result thereof was unable to look after her farm, and that said deceased employed the plaintiff to wait upon her and to look after her farm with the understanding and agreement that he should be paid *426for bis services. Tbe plaintiff and tbe deceased were brother and sister. Tbe evidence tended to show that the plaintiff rendered services to tbe deceased in building a tenant house, hauling wood, covering a crib, and otherwise taking care of tbe deceased and managing her farm.

Tbe nature of tbe contract between tbe parties was thus described by a witness: “I beard her (deceased) say a number of times if be would take care of things and see to them, that they could not themselves, they were unable to — that be would be well paid for it.” There was further testimony to tbe effect that in 1919 tbe plaintiff bought a cotton planter from tbe deceased, agreeing to pay therefor tbe sum of $25.00, that be paid $15.00 and tbe deceased allowed tbe balance of $10.00 as a credit on tbe account for services. In 1921 there was a payment of $3.00 made by tbe deceased to tbe plaintiff, and in 1925 a payment of $40.00. The circumstances under which these payments were made do not appear.

Tbe defendant denied that tbe plaintiff bad performed services for bis testatrix, and also pleaded tbe statute of limitations.

Two issues were submitted involving tbe value of plaintiff’s services and tbe statute of limitations. Tbe jury answered tbe first issue “$1,300,” and tbe second issue “No.”

From judgment upon tbe verdict tbe defendant appealed.

George B. Patton for plaintiff.

B. D. Sisk and Edwards & Leatherwood for defendant.

BeogdeN, J.

Tbe judge charged tbe jury as follows: “Tbe court charges you that if you find by tbe greater weight of evidence that tbe deceased, Mrs. Penland, in 1925, paid tbe sum of $40.00 to tbe plaintiff, and that such payment was made with the intention and understanding between them that tbe payment was to be credited by tbe plaintiff upon a running account between plaintiff and Mrs. Penland for services rendered to Mrs. Penland by tbe plaintiff, and that such payment was of such a nature and made in such a way as to imply in law that tbe debtor acknowledged tbe debt as still existing, and implied a promise unequivocally to pay tbe same, then you should answer tbe issue No. If you find, on tbe other band, that such payment was not made in recognition to pay tbe balance of any existing running account, then you answer tbe issue Yes.”

Tbe plain effect of tbe foregoing instruction was to instruct tbe jury that if in 1925, $40.00 bad been paid on a running account, then tbe whole account from 1916 to tbe death of tbe deceased in 1926 would constitute a valid claim, as tbe statute of limitations in such event would *427not operate as a bar. Tbe instruction so given tbe jury overlooked tbe distinction between a running account and a “mutual, open and current account, where there have been reciprocal demands between tbe parties,” etc., as defined by C. S., 421. This section has been construed in many cases, notably, Hollingsworth v. Allen, 176 N. C., 629, 97 S. E., 625; McKinnie Bros. v. Wester, 188 N. C., 514, 125 S. E., 1.

What then is tbe effect of tbe payment of $40.00 made in 19251

Tbe contract alleged by tbe plaintiff contemplated indefinite and continuous services with no fixed time for payment and with no agreement as to what services should be performed or tbe value thereof. Hence tbe agreement is governed by tbe principle of law announced in Miller v. Lash, 85 N. C., 52, as follows: “We are of opinion, then, that tbe unexplained fact of labor performed and extending over a series of years raises no implication that payment is to be made at any fixed period, unless perhaps annually, as controlled by a prevalent custom appropriate to tbe kind of service and entering into tbe contract, when it so appears in evidence. Tbe implied promise is to pay for services as they are rendered, and payment may be required whenever any are rendered,; and thus tbe statute is silently and steadily excluding so much as is beyond tbe prescribed limitation.” When tbe statute of limitations is pleaded tbe burden is on tbe plaintiff to show that bis claim is still alive and valid. Rankin v. Oates, 183 N. C., 517, 112 S. E., 32; Jackson v. Harvester Co., 188 N. C., 275, 124 S. E., 334.

Tbe evidence discloses that no payment was made by tbe deceased to tbe plaintiff from tbe year 1921 until tbe $40.00 was paid in 1925. Thus, more than three years bad elapsed between tbe payments. Tbe payment of $40.00, made in 1925, nothing else appearing, bad tbe legal effect of preventing tbe bar of tbe statute of limitations against tbe most precarious claim then existing, that is, tbe one for 1922, and of prolonging its enforceability for three years beyond tbe date of such payment. This principle was announced in Hewlett v. Schenck, 82 N. C., 234, in tbe following language: “So a partial payment, though tbe evidence need not be in writing, being an act and not a mere declaration revives tbe liability because it is deemed a recognition of it and an assumption anew of tbe balance due. But if at tbe time such payment is made tbe presumption arising from tbe unexplained fact is disproved by tbe attending circumstances or other sufficient evidence of a contrary intent, tbe payment will not have such effect.” Cone v. Hyatt, 132 N. C., 810, 44 S. E., 678; Supply Co. v. Dowd, 146 N. C., 191, 59 S. E., 685; French v. Richardson, 167 N. C., 41, 83 S. E., 31. Tbe result is that tbe payment of $40 in 1925 prevented tbe bar of tbe statute of limitations as to all claims to. a corresponding date in 1922. Moreover, as tbe services were continuous, such payment constituted a legal *428recognition o£ all claims witbin tbe statutory period of three years, that is from said corresponding date in 1922. Therefore, as there is no express contract, the plaintiff is entitled under the law to’ recover the reasonable value of all services rendered from said date in 1922, subject, nevertheless, to credit for such amount as the deceased paid during said period of liability. Wood v. Wood, 186 N. C., 559, 120 S. E., 194.

New trial.