A. F. Pylant, Inc., Appellant, v. Escambia Treating Company, Appellee, 276 F.2d 924 (5th Cir. 1960)

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US Court of Appeals for the Fifth Circuit - 276 F.2d 924 (5th Cir. 1960) April 14, 1960, Rehearing Denied May 30, 1960

M. M. Roberts, Hattiesbury, Miss., Jesse W. Shanks, Purvis, Miss., for appellant.

Joe J. Harrell, Pensacola, Fla., Jones and Harrell, Pensacola, Fla., for appellee.

Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.


The judgment is affirmed. The only contention of appellant which merits comment is its claim that the action was barred by the statute of limitations. The contract called for the treatment of 20,000 to 40,000 cross-ties. By November 20, 1954, 24,985 ties had been completed. Additional ties were treated on January 20, 1955, at which time appellant had not expressly repudiated or breached the contract. The statutory period must therefore be held to have commenced running on January 20, 1955. Suit was filed on January 18, 1956, and was then within a year of the accrual of the cause of action. See Alsheimer v. Palmer, 1932, 105 Fla. 224, 141 So. 121.

We find no error in the trial court's construction of the contract and its conclusion as to the rights flowing therefrom. The judgment is affirmed.