Jacob Kull & Sons v. Farmer

• Decision Date: 31 January 1878
• Citation: 78 N.C. 339
• Court: North Carolina Supreme Court
• Parties: JACOB KULL & SONS v. W. D. FARMER.

78 N.C. 339

JACOB KULL & SONS

v.W. D. FARMER.

Supreme Court of North Carolina.

January Term, 1878.

CIVIL ACTION, tried at Fall Term, 1877, of WILSON Superior Court, before Eure, J.

The defendant being indebted to the plaintiffs on a promissory note, was, in the year 1868 or 1869, under proceedings instituted in the proper District Court of the United States, declared a bankrupt; and afterwards by a decree of the Court discharged from his debts. After the adjudication in bankruptcy and before his discharge, the defendant promised to pay the debt, and after his discharge again promised to pay it. Neither of the promises was in writing. This action was commenced more than three years after making the first, and within three years after making the last promise to pay the debt. Upon these facts admitted in the pleadings or found by the jury, judgment was rendered for the plaintiffs and the defendant appealed.

Messrs. Busbee & Busbee, for plaintiffs .

Messrs. Kenan & Murray and Geo. M. Smedes, for defendant .

SMITH, C. J. (After stating the facts as above)

Although there are conflicting decisions elsewhere, it is a well settled doctrine in this State, that the legal effect of a new promise relied on to remove the bar of the statute of limitations, is to put that impediment out of the way and revive the original cause of action. Hence it is held that a new promise made after the commencement of suit is sufficient to repel the statute, and enables the plaintiff to recover. Falls v. Sherrill, 2 Dev. & Bat. 371. It is otherwise where a promise is made to pay a debt discharged under the Bankrupt Act. In this the promise itself becomes or may become the cause of action and the unpaid prior legal obligation, notwithstanding the discharge, is a sufficient consideration to support it.

Where the cause of action has accrued since the adoption of the Code of Civil Procedure and is barred by lapse of time, the new promise to have any efficacy must be in writing. C. C. P. § 51. If the plaintiffs had declared on the first promise and relied on the last, as evidence to remove the statutory bar, the provision of the Code would apply and they would fail. But the plaintiffs rely on the last promise as constituting the foundation of their right to recover, and this was within three years next before the issuing of the summons. We see no reason why this cannot be done; nor why a consideration sufficient to sustain the one, is not also sufficient to sustain...