Campbell v. Brown

• Decision Date: 28 February 1882
• Citation: Campbell v. Brown, 86 N.C. 376, 41 Am.Rep. 464 (N.C. 1882)
• Court: North Carolina Supreme Court
• Parties: THOMAS J. CAMPBELL v. BROWN & BROWN.

86 N.C. 376

41 Am.Rep. 464

THOMAS J. CAMPBELL

v.BROWN & BROWN.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Spring Term, 1882, of BUNCOMBE Superior Court, before Gilliam, J.

On the 7th day of April, 1852, the defendants gave their bond to the plaintiff, whereby they covenanted to pay him, nine months after that day, at Pittsburg, in Pennsylvania, the sum of $1,670.50, and upon which they made two payments, as endorsed thereon--one of $334.00 on the 23rd of April, 1855, and the other of $99.75, on the 23rd of January, 1857.

This action, which was begun on the 29th December, 1876, is brought to recover the balance due on said bond. The defence relied on is payment presumed under the statute from lapse of time since the date of the last payment.

On the trial the plaintiff offered in evidence thirteen letters addressed to himself from the defendant W. J. Brown, the first one bearing date June 4th, 1853, and the last September 24th, 1870, and the others written at irregular intervals between those two dates, and in all of which there were contained express acknowledgments of the debt as still subsisting, and promises to pay it. He also offered in evidence two letters from the defendant John E. Brown--one dated April 15th, 1855, in which he proposed to pay the interest then due and such as should become due in the next ensuing twelve months, provided the plaintiff would agree to extend, for that period, the time for payment of the principal; and the other dated July, 1855, in which was remitted a check for the sum of $334.00, he having been notified of the plaintiff's acceptance of the above proposition. He also offered in evidence a third letter from this defendant, dated the 19th September, 1856, and written from Australia, in which there was a renewed promise to pay the debt as soon as he should be able to do so, and requesting the plaintiff's forbearance. It was also shown in evidence that the defendant John E. Brown left the state of North Carolina in the year 1852, before the maturity of the bond, and that he has not resided here since that date.

The court instructed the jury that the unqualified admissions of the note sued on, and a promise to pay it, by one defendant, made within ten years preceding the bringing of the action, and before the bar of the statute was complete (counting out the time between May the 20th, 1861, and January 1st, 1870,) would rebut the presumption of payment as to both, and entitle the defendant to recover against both; and further, that if the defendant John E. Brown wrote to the plaintiff that he could not pay the note at the time, and begged indulgence, then the time of such indulgence given in pursuance of such request, would not be counted as to him, and that if the defendant John E. had left the state before the bond matured, and had not since returned, the statute would not run, or the presumption arise, as to him. As to all of which instructions the defendants excepted. There was a verdict and judgment for plaintiff, and the defendants appealed.

Messrs. C. A. Moore and H. B. Carter, for plaintiff .

Mr. J. H. Merrimon, for defendants .

RUFFIN, J.

The right of action having accrued in this case prior to the year 1868, it is to be determined by the law as it existed at the date of the contract.

We are of opinion that the court erred in instructing the jury, that no presumption of payment could exist as to the defendant John E. Brown, because of his having departed from the state before the bond sued on had matured, and his being continuously absent since.

The proviso, contained in Rev. Code, ch. 65, § 10, whereby it is declared that as to a debtor, non-resident at the time a cause of action against him shall accrue, the plaintiff may have his action upon his return within the time limited for such actions, has no application to the case of a presumed payment arising from the lapse of time under the act of 1826, (Rev. Code, ch. 65, § 18.) It formed a part of the act of 1715, and had exclusive reference to the statute of limitations proper.

It is the duty of a debtor, regardless of his place of residence, to seek his creditor, for the purpose of making payment; and there will be a presumption in favor of his having done so, in every instance, after the lapse of the time which the statute prescribes.

Though not possessing the force of an absolute statutory bar, the presumption of payment under such circumstances is very strong, and is favored by the law as tending to the repose of society and the discouragement of stale claims. It is one, indeed, that may be rebutted by proof of circumstances which raises a stronger counter-presumption, and as was said in McKinder v. Littejohn, 4 Ired., 198, evidence of a change of residence, or even of a distant residence, may be received for this purpose in aid of other evidence, such as the insolvency and general destitution of the debtor.

But we know of no authority proceeding from this, or any other court, for saying that a mere change of residence is of itself sufficient, wholly to prevent the presumption, which the law, by an intendment of its own, raises from the lapse of the prescribed number of years, without something having been done on the part of the creditor, to enforce the satisfaction of his demand. And more especially would such a rule seem out of place in a case in which, like the present one, the instrument sued on was on its face made payable beyond the limits of this state, and the plaintiff himself so resided, and could have exactly the same remedies against the defendant, and the same opportunity to enforce them, after his removal, that he before possessed. The tribunals of the state of California, whither the defendant removed, were as open to ...