Caruthers & Kinkle v. Mardis' adm'rs, 3 Ala. 599

ORMOND, J. The ease cited from 6 Johns. 277, certainly sustains the doctrine contended for by the counsel for the plain-tiffin error, that a promise by one of several executors or administrators, will take a case out of the statute of limitations. That case however, is-expressly overruled by the subsequent one of Forsyth v. Ganson, 5 Wend. 558, in which the former is denied to be law, and such is our opinion. Such was also the decision in the cases of Tulloch v. Dunn, Ryan & Moody, 416, and Atkins v. Tredgold, 2 Barn & Cress. 12.

Two statutes of limitation are in force in this State, applicable to parol contracts. The first, declares that all actions of accQunt, and upon the case, except actions for slander, and such as concern the trade of merchandize, between merchant and merchant, their factors or agents, shall be commenced, within six years, &c. Aik. Dig. 270. A subsequent statute provides that “ no action shall be brought to recover any money due by open account, alter the expiration of three years from the accruing of the cause of action.” Aik. Dig. 272. This question has been before this Court in the cases of Maury’s adm’rs v.

Mason’s adm’r, 8 Porter 230; and again in Sheppard v. Wilkins, 1 Ala. Rep. 62, in both of which the Court attempted to define the term, open account. In the former, it - .was held that an account was not necessarily open, because it was not stated or reduced to writing, if its terms were fixed and certain. In the latter, it was held that an open account is one in which some term of the contract is not settled by the parties, whether the account consists of one item or many. .

The account in this case was the price of a carriage, purchased and paid for by the plaintiffs, at the instance of the deceased, with the cost of the freight from New-York to New-Orleans. This is not an open account, according to either.of the

definitions cited. If there was no express promise to that effect, the law would imply a promise to pay the cost of the carriage, for which the plaintiffs became responsible, and actually paid, and the costs of transportation. The amount, therefore, which the deceased owed, was not dependant on any future liquidation or settlement between the parties, but followed as a legal consequence, from his authorising the purcháse to be made on his account.

In the language of the case just cited, there was no term of the contract open for adjustment, and it was therefore not an open account within the meaning of the statute, and the Court erred in not giving the second charge asked for. It is, however, insisted by the counsel for the defendant in error, that if the Court erred in its charge, the cause will not be remanded, as the demurrer to the declaration should have been sustained.

It is true, that the cause will not be reversed, though the Court may have erred in its charge, if upon the entire record it is obvious, the plaintiff never can recover; but the objection which exists to this declaration, is not of that character. The only- objéctión to the declaration- brought to our notice js,- the • discontinuance-of one of the administrators. In Williams & Ivey v.

Sims, 8 Porter, 579, we held that several joint executors were, at common law, considered but one pers©n,-.and that in this State, .undér our statutes, all executors who have qualified as, such-, and-reside within the State, must -be joined in the action. It was also held that the statute authorising a-discontinuance in- the case of a joint obligor, not served with- process,, did -not apply» The-decision referred to, was made-in-reference toexecutors;, but in this-State, and for the purposes of this inquiry, there is no . difference between executors and administrators.

Although,-therefore,-the discontinuance of'one-of the adm’i'S tnay be a discontinuance of the entire action, it is an objection which the defendant cannot- avail himself of here, in» this- proceeding, and has-only been looked to for the purposemfshow-ing that it-is not -such an erraras would entitle the defendant to judgment, notwithstanding ihe-ei-ror committed-by the Court ia its charge .to- the jury. • Let the -judgment be re versed;, and- the cause remanded,, for. further .-proceedings...