Falls v. Sherrill
| Decision Date | 30 June 1837 |
| Citation | 19 N.C. 371 |
| Court | North Carolina Supreme Court |
| Parties | THEOPHILUS FALLS, Adm'r of ABSALOM SIMONTON, v. ELI SHERRILL. |
A promise to pay a debt barred by the statute of limitations, revives the old contract, or is evidence of similar continued promises from the time the contract was made. Henee it follows, that the first promise should be declared on. And if the new promise be made after the writ is sued out, the plaintiff may recover.
This was an action of assumpsit, commenced by the plaintiff's intestate, for money paid, laid out and expended by the intestate, for the defendant.
The only question between the parties arose upon the plea of the statute of limitations. On that, a verdict was taken for the plaintiff, on the last Fall Circuit,before Dick, J., at Iredell, subject to the opinion of the Court, upon the following facts. The action was commenced 7 Dec, 1832, in the lifetime of Simonton: a few days thereafter the plaintiff, as the agent of Simonton, applied to the defendant for payment of, or security for, the debt. The latter admitted his indebtedness, and offered to give his bond with surety, for the amount due; which was agreed to by the plaintiff; but the defendant subsequently refused to complete the arrangement.
His Honor, thinking that the action ought to have been
brought on the last promise, set the verdict aside, and directed a nonsuit to be entered; and the plaintiff appealed.
RUFFIN, Chief Justice: There is no dispute of fact in this case. We collect, from the record, that it was admitted, the defendant made the declarations deposed to by the witness. The question, whether the case is taken out of the statute of limitations, is, under such circumstances, a question of law; and if held affirmatively, there must be judgment for the plaintiff, on the verdict, without sending the parties back to have that testimony passed on by a jury. Clarke v. Butcher, 9 Cowen, 674.
If this acknowledgment had been before suit, and the declaration framed on it, there could be no doubt of its sufficiency. It is a clear and precise acknowledgment of the debt, its amount and present justice, accompanied by a proposal to secure the payment. The cause turns, therefore, entirely on the question of pleading. It is said, that, as no acknowledgment ought or can take a case out of the statute, but such as will amount to a promise to pay the debt, the declaration must, in every case, be on the acknowledgment, as a special promise; and that cannot be done in the case at bar, because the promise in proof was subsequent to the commencement of the suit. The state of factscertainly raises the point made, and renders a decision of it unavoidable. What shall take a case out of the statute, is a matter of much importance to the rights of suitors; and the Court agrees, that it should be only such an acknowledgment, as would be evidence to sustain an action brought on it as a special promise. It is not of so much consequence, whether such an acknowledgment is to have its operation by giving an action on it, or by reviving the remedy on the original undertaking, which was before gone or suspended. It is not so much a point involving principle, as the mode of proceeding; and its decision may therefore, with more propriety, be placed on the ground of precedent and authority.
Many sayings have dropped incidentaly from judges in
modern times on this question. But we believe there has been no adjudication before the present, that, in the case of verbal promises between the same individual persons, the action would not lie on the original contract. It has not been decided in this state, that it would not. In Bank v. Sneed, 10 N. C., 500, the question was argued, but not decided. Judge Henderson remarked, that although he rather thought the principle was the other way, the weight of authorities was much in favour of the old promise; and that the new one repels the bar of the statute. We think he was certainly well warranted in the latter part of the proposition. It is true, that it was settled, upon a technical principle of pleading, that the declaration must be on the new promise, when it is made by or to an executor; and from that the Court would neither feel inclined nor at liberty to depart, because it is settled. But the cases are very numerous of every other sort, in which it was held, that an acknowledgment authorized a recovery upon the first cause of action, either because it revived the remedy, to which alone the statute applies, or because it was evidence of a continuing promise throughout the period from the time of making the first to that of the last. Formerly, and especially in the time of Lord Mansfield, it seems to have been put on the first ground. More recently, the last view has been taken of it. The late statute of 9 Geo. IV., in England, for instance, treats it in that way. It provides that "noacknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactment, or to deprive any party of the benefit thereof." It is not very refined, and certainly not irrational, when an original promise has been proved, to infer from a promise now made, that an intermediate one, or many such, had likewise been made, if they be between the same parties, and to do the same thing. A difficulty may be suggested, when the acknowledgment is conditional. It is true, that the promises are not then identical in terms. But after the performance of the condition, such a promise furnishes evidence of all the facts from which a previous absolute promise within the time of limitation may be inferred. It is a positive admission that the debt is due; that the defendant had been willing to
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