King Bros. Shoe Co. v. Wiseman
| Decision Date | 05 December 1917 |
| Docket Number | 516. |
| Citation | 94 S.E. 452,174 N.C. 716 |
| Parties | KING BROS. SHOE CO. v. WISEMAN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Avery County; Carter, Judge.
Action by King Bros. Shoe Company against Sep. S. Wiseman. Judgment of nonsuit, and plaintiff appeals. New trial.
On promise of indorser to pay what was left on notes after payment by bankruptcy court, held statute did not begin to run until balance was ascertained, after payment by court.
Plaintiff sued for $182.50 balance due on note, the excess of the debt having been remitted. After the evidence was closed the court ordered a nonsuit, and the action was dismissed, because the claim of the plaintiff, as the court ruled, was barred by the statute of limitations. The defendant, waiving the question whether a nonsuit can be granted upon the ground stated by the court, proved that the defendant had, on February 4 1913, sent the following letter to plaintiff:
"File your claim against the bankrupt court and get your share what is left I will pay."
There was evidence tending to show that this letter was written in answer to one from the plaintiff to the defendant, in which demand was made on the latter for the payment of two notes he had indorsed for M. A. Thompson, and which were payable to and owned by the plaintiff. The amount due on the notes from the estate of M. A. Thompson, the bankrupt, was not paid by the trustee in bankruptcy until 1915, the first installment of $50 on May 15th, and the second of $17.50 on December 15th of that year. So far as appeared, there were only two notes owing by Thompson to the plaintiff. Judgment was entered on the nonsuit, and plaintiff appealed.
F. A Linney, of Boone, V. B. Bowen and Harrison Baird, of Elk Park, for appellant.
J. W Ragland, of Newland, W. C. Newland, of Lenoir, and S. J. Ervin, of Morganton, for appellee.
WALKER, J. (after stating the facts as above).
The justice's court had jurisdiction as the plaintiff duly remitted the excess over the amount demanded in the summons treated as a complaint (Revisal,§ 1445), which was $182.50. We have often held that the jurisdiction is determined by the amount demanded in good faith, even if plaintiff could have sued for more than $200. Revisal, § 1419; Teal v. Templeton, 149 N.C. 32, 62 S.E. 737, citing McPhail v. Johnson, 115 N.C. 302, 20 S.E. 373; Cromer v. Marsha, 122 N.
C. 563, 29 S.E. 836; Brantley v. Finch, 97 N.C. 91, 1 S.E. 535. It is there said that:
"Had it been doubtful as to the sum demanded, the remittitur made it clear, even if it had been retroactive."
The letter of the defendant, dated February 4, 1913, was sufficient to prevent the bar of the statute of limitations. It contains an absolute promise to pay the balance of the debt, after deducting therefrom the amount paid by the trustee in bankruptcy. When taken in connection with the letter to which it was an answer, it describes the notes with sufficient certainty, for plaintiff demands payment of the notes, and defendant, replying to this demand, agrees to pay what is left after plaintiff gets the share of the bankrupt's estate applicable to the debt. This is a distinct and definite promise to pay a certain debt, and the rule is given by which the amount is to be ascertained, namely, by deducting the amount paid by the trustee. The maxim of the law is: That is certain which can be rendered certain (id certum est quod certum reddi potest). The rule in such cases is well stated in Taylor v. Miller, 113 N.C. 340, 18 S.E. 504, by Justice MacRae, when quoting from the opinion of Justice Rodman in Faison v. Bowden, 72 N.C. 405:
"The new promise must be definite, and show the nature and amount of the debt, or must distinctly refer to some writing, or to some other means by which the nature and amount of it can be ascertained, or there must be an acknowledgment of a present subsisting debt, equally definite and certain, from which a promise to pay such debt may be implied."
The rule as thus approved was deduced and formulated by Justice Rodman from previous decisions, especially McBride v. Gray, 44 N.C. 420, and Shaw v. Allen's Ex'rs, 44 N.C. 58, where Judge Battle said that, to repel the statute of limitations, there must be a promise to pay the debt sued on, either express or implied, and the terms used must have sufficient certainty, or be capable of being reduced to a certainty, under the maxim, id certum est quod certum reddi potest, and the claim should be identified as that in regard to which the promise was made, citing Smith v. Leeper, 32 N.C. 86, and Moore v. Hyman, 35 N.C. 272. It will be found that these cases strongly support the position of the plaintiff here. In the Moore Case, Judge Pearson said:
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