
    No. —
    First Circuit
    WEST PUBLISHING COMPANY v. GAGNE
    (May 4, 1926, Opinion and Decree)
    
      (Syllabus by the Editor.)
    
    1. Louisiana Digest — Pleading—Par. 113, 118.
    In a suit on an open account a written contract is inadmissible in evidence because it is irrelevant.
    2. Louisiana Digest — Prescription — Par. 129.
    Open accounts are prescribed in three years.
    Appeal from the Seventeenth Judicial District, Parish of Terrebonne, Hon. Robt. B. Butler, Judge.
    Action by West Publishing Company ■ against Harris Gagne. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Charles J. Mundy, of Thibodaux, attorney for plaintiff, appellant.
    Harris Gagne, in person, of Houma, attorney for defendant, appellee.
   ELLIOTT, J.

This suit was filed January 24, 1918. Service was accepted the | following day. Defendant filed and urges as an exception to plaintiff’s right of action the prescription of three years, which the court, with the consent of the parties referred to the merits. Defendant then answered, subject to his exception, denying plaintiff’s demand. The court after trial, sustained defendant’s plea of prescription and dismissed the suit. Plaintiff appealed.

Plaintiff’s demand is bn an account for law books, commencing October 26, 1910, and ending February 20, 1912. The plaintiff does not allege that the account has been acknowledged and the evidence does-not show any; but it is urged in plaintiff’s brief that we ought to notice a contract which the defendant signed at the time he bought the books; but this contract is not sued on, nor referred to in plaintiff’s petition. This contract was not adduced by the plaintiff until December 22, 1925, when it was offered in evidence on the trial of the case. Defendant objected to it as evidence, on the ground that it had not been declared on in the suit, and that plaintiff did not claim in its petition that the account sued on had been acknowledged. The objection is good.

The suit is on an open account; it is not based on this written contract. Plaintiff’s petition does not refer to this contract, nor claim that the account has been acknowledged by the defendant.

The action brought by the plaintiff was barred by the prescription urged against it long before the time this case was tried.

The prescription of three years against the action brought, had already run and become an acquiesced right, before this suit was Instituted.

The judgment appealed from is correct.

Judgment affirmed.  