Chester PILCH, a sole proprietorship, trading as Pileh's Poultry Farms,
Madison GRAY, Trading as Gray's Poultry Farms.
Action for goods sold and delivered. Buyer moved for judgment on pleadings under Rule 12(c) on ground that action was barred by statute of limitations. The Superior Court, Sussex County, Richards, President Judge, held that buyer's request to seller's attorney for a compromise offer of settlement of claim was not an unqualified and direct admission of the debt, sufficient to remove the bar of the statute of limitations.
Caleb M. Wright, Georgetown, for plaintiff.
Robert W. Tunnell (of Tunnell & Tunnell), Georgetown, for defendant.
RICHARDS, President Judge.
The record before me discloses that the plaintiff filed a suit against the defendant on April 26, 1954, to recover the sum of $1,611.70, for goods sold and delivered by the plaintiff to the defendant between July 24, 1950 and October 26, 1950.
The defendant filed an answer in due course in which it appears as an affirmative defense that the cause of action set forth in the complaint did not accrue within three years next before the commencement of said action. In pursuance of said answer defendant moved for judgment on the pleadings on the ground that the action was barred by the statute of limitations.10 Del.C. § 8106.
The plaintiff contends that his attorney, who at that time was I. D. Short, received a letter from Tunnell & Tunnell, attorneys for the defendant, dated March 19, 1953, inviting him to make a compromise offer of settlement, which read in part as follows:
‘ I believe that the eggs were sold in violation of the implied warranty of fitness which covered this sales transaction. Both Madison and Myself believe, however, that we should request you to obtain from the seller, if possible, a compromise offer of settlement, which, if you will forward to us, we will give our earnest and serious consideration’ .
[49 Del. 141] On April 2, 1953, the plaintiff's attorney received a letter from his correspondent which contained the following language:
‘ We should not accept a fifty percent settlement, however, I will leave this matter to your judgment and if you believe a fifty percent settlement is desirable without going to Court, it is O. K. with me.’
To this letter plaintiff's attorney made the following reply:
‘ I have discussed settlement of the above matter with debtor's attorney. He has written to debtor and we should have some response within the course of the next few days. I will advise you when I have further word’ .
On December 22, 1953, plaintiff's attorney received a letter from the defendant's ...