* Corpus Juris-Cyc. References: Limitations of Actions, 37CJ, p. 767, n. 61; p. 876, n. 96; Payment, 30Cyc, p. 1230, n. 64; p. 1244, n. 56. On the 17th day of August, 1926, the appellant, M.G. Travis Co., filed this suit in the circuit court of Wayne county against the appellee for a balance of five hundred twenty dollars, alleged to be due on an open account. The first item charged on the account bears the date of *Page 372 January, 1920, while the last item is dated September 5, 1923. The account has several credits thereon, including the value of three bales of cotton and certain live stock sold and delivered to the appellant, all of these credits being dated in the year 1922, except one for twenty-five dollars cash, which is dated October 13, 1926.
The appellee filed an affidavit denying the items of the account, and also pleaded payment and the three-year statute of limitations. At the conclusion of the testimony, the appellee made a motion for a peremptory instruction on the ground that the account sued on and offered in evidence shows that all items thereon, except two aggregating three dollars and twenty-five cents, were barred by the statute of limitations, and the credit of twenty-five dollars on October 13, 1926, overpaid the items which were not barred. This motion was sustained; in response to the peremptory instruction, the jury returned a verdict for the defendant; and from a judgment entered in pursuance of that verdict, this appeal was prosecuted.
Section 3099, Code of 1906 (section 2637, Hemingway's Code 1927, provides that:
"Actions on an open account or stated account not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after."
While section 3100, Code of 1906 (section 2638, Hemingway's Code 1927), which fixes the time when the statute begins to run on open accounts, provides that:
"In all actions brought to recover the balance due upon a mutual and open current account, where both parties are merchants or traders, the cause of action shall be deemed to have accrued at the time of the true date of the last item proved in such account; and in all other actions upon open accounts, the period of limitation shall commence to run against the several items thereof from *Page 373 the dates at which the same respectively became due and payable."
The appellant contends that, since the appellee purchased merchandise and paid for the same partly with cash and partly with cotton and live stock sold and delivered to the appellee, to be credited on the account, the appellee was a trader, within the terms of the above-quoted section 3100; and, consequently, that on account of the mutual dealings between the parties the statute of limitations did not commence to run until the true date of the last item charged on the account; and since the suit was filed within three years of the date of the last item, no part of the account was barred.
The Code of 1880, section 2671, provided that in all actions brought to recover the balance due on a mutual and open current account, the cause of action should be deemed to have accrued at the time of the true date of the last item proved in such account; but it did not contain the limitation that this applied only to mutual and current accounts between merchants and traders; and, under this statute, the court, in Abbay v.Hill, 64 Miss. 340, 1 So. 484, held that if a merchant sells supplies to his customer, and receives from him cotton, which he sells for him, and credits the net proceeds of the cotton on the account against the customer for supplies, the account thus kept will be a mutual and open current account, within the meaning of this statute. Under the present statute it is only actions based upon mutual and open current accounts between merchants or traders which may be held to have accrued at the time of the true date of the last item proved in such account. In the case at bar, the appellee was not a trader. The proof shows that he was a farmer, and the fact that he sold the products of his farm and the surplus live stock therefrom does not make him a trader; consequently, the period of limitation commenced to run against the several items of the account from the dates at which the same became due and payable. There were only three items charged on the account *Page 374 during the year 1923; one of four dollars on July 23d; one of two dollars and forty cents, on August 25th; and one of eighty-five cents, on September 5th. This suit was filed on August 17, 1926; and, consequently, the items of August 25 and September 5, 1923, were not barred by the three-year statute of limitations.
The appellant contends that the item of July 23, 1923, is not barred for the reason that, under the custom and usage of merchants in that locality, accounts with farmers are not due and payable until the 1st day of October of the year in which the items of the account are sold. There was some attempt to prove such a local custom, but the testimony on that point is insufficient to establish such a general custom, and therefore the item charged on July 23, 1923, is barred by the statute.
There was a credit of twenty-five dollars indorsed on the account, dated October 13, 1926, and the court below applied this payment in extinguishment of the items amounting to three dollars and twenty-five cents which were not barred — or, in other words, the last items of the account. The rule is well established in this state that, where neither party makes application of a payment to the items of an account, the law applies it to the first items thereof. Whether this rule would authorize and require the court to apply the payment to items that were barred it is not necessary to now decide, for the reason that this record clearly establishes the fact that the defendant intended that this payment should be applied to items antedating August, 1923, which were barred. The items that were not barred amounted to only three dollars and twenty-five cents, while the payment was twenty-five dollars. The debtor emphatically and repeatedly denied that he purchased any of the items charged in the year 1923, and, consequently, he necessarily intended this payment to apply on the account made prior to that year. This will be construed as an application by the debtor to the barred account.
As to whether the last two items of the account, amounting to three dollars and twenty cents, were purchased *Page 375 by the appellee, the testimony is in sharp conflict, and this conflict of evidence can only be solved by a jury. The amount left in controversy is very small, but it necessitates a reversal of the judgment of the court below and a remand of the cause for a new trial.
Reversed and remanded.