Breach of Contract

This is the 7th in a series of articles about Mississippi statutes of limitation found in Title 15, Chapter 1, of the Mississippi Code. You can read the other articles here .

This article discusses how a statute of limitation on a breach of contract claim can be extended by either an acknowledgement of debt or a new promise to pay it.

As explained in earlier posts, Title 15, Chapter 1, of the Mississippi Code contains several statutes of limitation applicable to claims for breach of contract.

As to all of those statutes, Section 15-1-73 explains that a party who has breached the contract may, by his actions, extend the statute of limitation. To do so, these requirements must be met:

(i)       The debt must be acknowledged or a new promise to pay it must be given,

(ii)      The acknowledgement or promise must be in writing, and

(iii)     The writing must be signed by the party chargeable with the debt.

Proving the second element – – the existence of a writing – – is straightforward. Let us look, then, at the first and third elements.

With respect to the first element, the acknowledgement or promise must “state when the balance was due, to whom the balance was due, and for what the balance was due.” Harrison Enterprises, Inc. v. Trilogy Communications, Inc. , 818 So.2d 1088, ¶ 13 (Miss. 2002).

Such specificity is not required, however, when “the debt is evidenced by a written instrument from which the amount due thereon can be ascertained by calculation, in which event the amount due need not be stated in the acknowledgment or new promise.” Taylor v. De Soto Lumber Co. , 137 Miss. 829, 102 So. 260, 261 (1924).

So, for example, the writing could acknowledge the obligation to pay a promissory note upon which no payments have been made. The parties and the court could then look to the promissory note to ascertain the amount due.

Further, “superficial uncertainties as to exact amounts due, resolvable by explanation, are not sufficient to impair identification of the indebtedness.” Dyer v. Lowe , 201 Miss. 516, 29 So.2d 324, 325 (1947).

In Harrison Enterprises, supra, the letter said:

WE REALIZE OUR ACCOUNT IS OVER DUE. IF YOU WILL GIVE U.S. UNTIL THE MIDDLE OF AUGUST WE WILL BE ABLE TO PAY OUR ACCOUNT IN FULL.

The Supreme Court held this letter was sufficiently definite and unequivocal to take the case out of the operation of the statute of limitation.

When Section 15-1-73 was first enacted, the term “signature” was generally understood to mean something the person signed by hand.

In the current age of electronic transmissions, it seems almost certain that a Mississippi court would consider an electronic signature sufficient.

Indeed, as far back as 1892, the Mississippi Supreme Court explained that “exactly what constitutes a signing has never been reduced to a judicial formula” and a valid signing could be found “no matter how imperfect, or unfinished, or fantastical, or illegible, or even false the separate characters or symbols he used might be, when critically judged.” Sheehan v. Kearney , 82 Miss. 688, 21 So. 41, 42 (1896).

What is the scope of Section 15-1-73?

As noted at the beginning of this article, the statute only applies to claims for breach of contract.

In addition, the statute applies to the “provisions” of Title 15, Chapter 1 of the Mississippi Code. As a result, it could be argued that an acknowledgment or promise to pay would not extend other statutes of limitation, such as a claim breach of contract under the Uniform Commercial Code.

With respect to breach of contract claims not subject to Title 15, Chapter 1, it would be advisable to have a party sign an entirely new contract starting the statute of limitation running anew.

If you believe you have a claim, do not let the statute of limitation run. Contact the Panter Law Firm for a consultation. 601-607-3156.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

www.craigpanterlaw.com

Craig Painter

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