Opinion
Opinion filed June 6, 1930.
A Writ of Error to the Circuit Court for Escambia County; Thomas F. West, Judge.
Reversed.
R. Pope Reese, for Plaintiff in Error;
Fabisinski Caro, for Defendant in Error.
This writ of error was taken to a judgment for the plaintiff against the executrix of a decedent on an open account for medical services rendered to the decedent several years before his death. The defendant pleaded never was indebted and the three year statute of limitations. By replication the plaintiff alleged:
"That within three (3) years after the accrual of the said cause of action, and within three (3) years before the institution of this suit, the defendant's intestate acknowledged said indebtedness and verbally promised to pay the plaintiff the said indebtedness."
The evidence showed the account was not presented to the decedent and that it was barred by the three year statute of limitations. The only substantial evidence as to a promise by the decedent to pay the account was that the decedent stated to the plaintiff, "I want my bill." "I want a statement." There is testimony that the plaintiff replied to a request for a bill that he would make no charge, the parties being close friends. There is no competent evidence of a promise by the decedent to pay the plaintiff any amount so as to toll the statutory bar.
Reversed.
WHITFIELD, P. J., AND STRUM AND BUFORD, J. J., concur.
TERRELL, C. J., AND ELLIS AND BROWN, J. J., concur in the opinion and judgment.