(dissenting).
I dissent. I find that I must take issue with that portion of ¶ 5 of the syllabus of the majority opinion, which states:
“Part payment on a simple open account without a written acknowledgment or promise does not toll the statute of limitations.”
That portion of the paragraph of the syllabus is based on the following statement contained in the body of the opinion:
“A review of the record reveals that there is no evidence of an acknowledgment or promise in writing which would create an account stated. However, Dr. Erenfeld argues that part payment on a simple open account in itself tolls the statute of limitations. Dr. Erenfeld’s argument is untenable in view of our deci*411sion in Hansen v. Fettig, supra [179 N.W.2d 739], which holds that part payment on a simple open account without a written acknowledgment or promise does not toll the statute of limitations.”
The problem with this paragraph of the syllabus and the statement on which it is based is that Hansen v. Fettig, supra, does not hold that “part payment on a simple open account without a written acknowledgment or promise does not toll the statute of limitations.”
Hansen v. Fettig, supra, holds that an account consisting only of charges on one side and payments on the other is not a mutual account. With this I agree. Secondly, it holds that an account stated, under Section 28-01-36, N.D.C.C., requires that the statement be in writing, signed by the party to be charged thereby. With this I also agree. It then finds that the account in that case was neither mutual nor stated. With this I agree also.
Hansen v. Fettig, supra, does not consider part payments on a simple open account or the effect of part payment on the operation of the statute of limitations. It was not necessary to consider this principle because the author of that opinion found another avenue to pursue. In Hansen v. Fettig, supra, the creditor testified that he applied the payments to the oldest charges and we found that the debtor had failed to exercise his prerogative to direct otherwise at the time the payments were made. Therefore, the creditor’s act of applying the debtor’s payments to the oldest charges left the unpaid balance current.
There is no evidence and no claim is made in this case by Dr. Erenfeld that he applied the credits for the payments made by Mr. Texlee upon the oldest charges. In fact, the account in evidence indicates that the credits were applied to the balance of the whole account as of the time each of the respective payments were made.
The majority have not pointed out wherein Hansen v. Fettig, supra, holds that part payment on a simple open account, without a written acknowledgment or promise, does not toll the statute of limitations. However, if I permit myself to speculate, I assume that this conclusion is based on that portion of the opinion deciding the effect or applicability of Section 28-01-36, N.D.C.C., to the case, and the finding that the account was not an account stated. However, reading that portion of the opinion also leaves me in doubt because no reference whatever is made to part payments save the exception contained in the statute itself, which is quoted. The portions of the A.L.R. note which are quoted and relied upon as a basis for construction of the statute in no way suggest that part payment does not toll the statute of limitations where a simple open account is involved. The writer of the annotation, in footnote 18, 51 A.L.R.2d 331, 365, sets forth examples of statutes which he has considered and which are comparable to Lord Tenterden’s Act, to which he refers. These statutes are from the states of Arkansas, California, Massachusetts, Minnesota and Utah. A reading of these statutes immediately discloses that they are different from our statute (Section 28-01-36, N.D.C.C.) in that they do not contain the exception: “this section shall not alter the effect of any payment of principal or interest.” Part V of the annotation relied upon in Hansen v. Fettig, supra, covers “part payment”. This part of the annotation acknowledges that part payment of a debt will take it out of the operation of the statute of limitations. It then considers the effect of part payment on Lord Tenterden type statutes and concedes that, generally, part payment of a debt may affect the running of limitations against it. It cites the reader to American Jurisprudence, Limitation of Actions. This portion of the annotation is not quoted nor referred to in Hansen v. Fettig, supra.
It is clear to me that the scope of the annotation entitled “Limitations Statute — Account Stated” as contained in 51 A.L.R.2d, commencing at page 331, on which the au*412thor of Hansen v. Fettig, supra, has relied, was not intended to cover part payment except as part payment may affect the application of limitations to an account stated, which is the subject matter of the annotation. Here, and in Hansen v. Fettig, supra, we do not have an account stated and therefore the annotation is not applicable to the question of whether part payment of a simple open account tolls the statute of limitations.
Lord Tenterden’s Act (9 Geo. IV, c. 14, § 1) required that where an acknowledgment was relied upon to take a case out of the statute, the acknowledgment should be in writing, signed by the person to be charged thereby. The Act did not deal with the effect of a part payment, nor define by whom it might be made, nor whom should be bound thereby. It appears that Lord Tenterden’s Act left these matters to be regulated by the courts. Footnote 14, 51 Am.Jur.2d, Limitation of Actions, § 360.
The North Dakota statute requiring that a new promise must be in writing in order to extend the limitation period expressly excepts payments from its operation. The statute provides:
“No acknowledgment or promise is sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby, but this section shall not alter the effect of any payment of principal or interest.” [Emphasis added.] Section 28-01-36, N. D.C.C.
Thus payment without a written acknowledgment or promise is regarded as the equivalent of a new promise in writing. 51 Am.Jur.2d, Limitation of Actions, § 361.
Our court has recognized the principle that the statute of limitations is tolled as to the obligor in the event of payment upon the debt without a written acknowledgment or promise in a number of cases. Magnuson v. Breher, 69 N.D. 197, 284 N.W. 853 (1939); Langlie v. Loge, 59 N.D. 399, 230 N.W. 211, 71 A.L.R. 373 (1930); Roles v. Roles, 58 N.D. 310, 225 N.W. 809 (1929); Hansen v. Branner, 52 N.D. 892, 204 N.W. 856, 41 A.L.R. 814 (1925); Omlie v. O’Toole, 16 N.D. 126, 112 N.W. 677 (1907).
Thus we have judicially acknowledged and adopted the well-established principle that a part payment of a debt may, under proper circumstances, constitute such an acknowledgment of a larger debt that will raise an implication of a new promise to pay the balance and set the statute of limitations running anew. This is the general, if not the universal, rule. 51 Am.Jur.2d, Limitation of Actions, §§ 360 through 390; 54 C.J.S. Limitations of Actions §§ 321 through 339; 36 A.L.R. 346. Our legislature acknowledged this principle by adopting the exception in Section 28-01-36, N. D.C.C., quoted above. The majority have, in my opinion, erroneously construed this statute by failing to recognize the exception.
It is clear from the citations heretofore given that a part payment, to be effectual to toll the running of the statute of limitations, must be voluntary, free from uncertainty as to identity of the debt, and must be made and accepted as a payment of a part of a larger debt, under circumstances consistent with intent to pay the balance. The burden is upon the creditor to show these requisites. 51 Am.Jur.2d, Limitation of Actions, § 369.
In addition to the facts set forth by the majority, the record establishes that the only account owed by Mr. Texlee to Dr. Erenfeld was for professional services rendered by the doctor to Mr. Texlee. These services were rendered on a regular basis from year to year. This is sufficient to warrant the inference that the payments were made on the debt claimed. 51 Am. Jur.2d, Limitation of Actions, § 369.
The evidence also establishes that there were from two to eighteen charges made *413per year for professional services rendered during the period subsequent to December 1958, and that in the years 1958, 1960, 1962, 1963, 1965, 1966, 1967 and 1968 a total of eleven partial payments were made on the whole account by Mr. Texlee. Only two of the eleven payments made were equal in amount to any of the specific charges. The total of all payments credited was considerably less than the total charges made during this period. There was an unpaid balance for the period subsequent to December 1958 of $6,261.00, which was allowed by the trial court. However, the record establishes, without question, that the continuing account had been running long before December 1958; that there was a change in the bookkeeping system in December 1958 when the balance from the older and abandoned bookkeeping system was carried over and posted to the new accounting system. The evidence also establishes that Mr. Texlee was billed monthly for the whole balance of the account and that it was upon this account that Mr. Texlee made the partial payments. In my opinion, the record establishes that Mr. Texlee acknowledged the continuing existence of a larger debt upon which he made partial payments.
It is, therefore, my further opinion that, under the evidence in this case, the account is a current open running account which has been in existence for approximately twenty-seven years, during which time Dr. Erenfeld rendered professional services to Mr. Texlee, and that the unpaid balance of this account, as of the date of the death of Mr. Texlee, was $19,040.40, which should be allowed as a current account. If, at any time, any portion of this indebtedness had become barred by the running of the six-year statute of limitations, the period, nevertheless, was started anew by the part payments which were made after the obligation had become barred, removing it from the statute and setting the statute running anew. 51 Am.Jur.2d, Limitation of Actions, § 363; 1 Am.Jur.2d, Accounts and Accounting, § 18; 54 C.J.S. Limitations of Actions § 321.
I also find that if I were to agree with the opinion of the majority as to the subject covered above, nevertheless, I would have to disagree with the method of computation by the majority in determining the allowable balance, the reason therefor being that there is absolutely no evidence of record to establish that Dr. Erenfeld applied the payments to the older charges. The record, to the contrary, shows that the payments were applied to the balance of the whole account as it existed at the time that each payment was made.
KNUDSON, J., concurs in the dissent of TEIGEN, J.