Ruffin v. Roberts

• Decision Date: 31 October 1881
• Citation: 39 Am.Rep. 692,85 N.C. 151
• Court: North Carolina Supreme Court
• Parties: A. RIGGS Ruffin, J., having been of counsel did not sit on the hearing of this case. v. A. J. ROBERTS, Adm'r.

39 Am.Rep. 692

85 N.C. 151

A. RIGGS Ruffin, J., having been of counsel did not sit on the hearing of this case.

v.

A. J. ROBERTS, Adm'r.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION tried at Spring Term, 1881, of ORANGE Superior Court, before Avery, J.

The action was commenced on December 3rd, 1879, before a justice, to recover the amount due on a bond executed on November 2, 1868, by Nelson Rhew, the intestate of the defendant, to the plaintiff in the sum of $178, to which is set up in defence, the discharge of the intestate in bankruptcy and the bar of the statute of limitations.

In answer to the defence, the plaintiff relies on subsequent recognitions of a continuing liability and partial payments made on the indebtedness.

To sustain his replication the plaintiff introduced and proved by one Wiley Teaseley a conversation between the parties in 1874, at the house of the intestate, in which the latter said he had let the plaintiff have a cow and calf at $30, in part payment and expected to pay every debt he owed. The witness further testified that he knew the intestate let the plaintiff have some yearlings also. Another witness for the plaintiff, one William Day, testified that in 1877 he heard the intestate ask the plaintiff if he would be willing to take a tract of land of about thirty acres for what he owed him, and that he had heard the intestate say at another time (not fixed) that he had let the plaintiff have a cow and calf and also an ox, in part payment of the debt he owed him, and he thought the plaintiff could realize $20 or $25 for the cow and calf, but the ox was in low condition.

The plaintiff further proposed to show by the witness a declaration made by the intestate to the plaintiff that he was indebted to the latter and expected to pay him out of some land, and further to repel the statute, that the intestate in 1877, told the plaintiff that he owed him a debt and inquired if the plaintiff would accept a piece of land, pointing it out, in satisfaction. This evidence on objection was ruled to be inadmissible.

The said Rhew obtained his discharge as a bankrupt on July 18th, 1871, and died intestate in February, 1878.

The bond and an order for $19.50 given in July, 1868, constituted the intestate's entire indebtedness to the plaintiff.

Upon the rejection of the proposed evidence the plaintiff submitted to a non-suit and appealed to this court.

Mr. D. G. Fowle, for plaintiff .

Mr. J. W. Graham, for defendant .

SMITH, C. J.

A strict construction of the record would confine us to a consideration of the ruling of the court in refusing to admit the testimony of the intestate's declarations as to his indebtedness, and of his offer of land in its satisfaction, as he was unwilling to submit his case to the jury upon the other proofs given.

The exception to this ruling so far as it affects the application of the statute of limitations to the claim, is disposed of by section 51 of the Code, which declares that “no acknowledgment or promise shall be received as evidence of a new or continuing contract whereby to take the case out of the operation of this title” (Limitations of actions) “unless the same be contained in some writing signed by the party to be discharged thereby.”

Again, the excluded declaration most favorable to the plaintiff is in effect, but an unaccepted offer to discharge the debt by a conveyance of land, and is in no proper sense such a recognition of a subsisting liability as in law will imply a promise to pay it.

But giving a more liberal interpretation to the case, and assigning the non-suit to an intimation from his Honor, that upon the evidence the plaintiff could not recover, we proceed to examine the sufficiency of the testimony received or offered to overcome the discharge pleaded, or to remove the...