Wolfe v. Fleming

• Decision Date: 31 December 1840
• Court: North Carolina Supreme Court
• Parties: ERASMUS D. WOLFE v. SAMUEL FLEMING.

1 Ired. 290

23 N.C. 290

ERASMUS D. WOLFE

v.SAMUEL FLEMING.

Supreme Court of North Carolina.

December Term, 1840.

Probably if there be an explicit acknowledgment of a debt, and a distinct admission that it has not been paid but still exists, and nothing more be said about the mode or time of payment as proposed by the debtor, or of his objection to pay upon the ground of the statute of limitations, or some other defence, then such unqualified admissions might go to the jury as evidence of a new promise. But if the language of the party be so vague and indeterminate, as not in itself to amount to a promise, or to satisfy the mind, either from its own terms or something referred to, what the party meant to engage, there is nothing to repel the statute of limitations.

To repel the bar created by this statute, the words ought not to leave the meaning in doubt, but should clearly indicate the intention to assume or to renew the obligation for the debt.

Where it was proposed to the defendant that if he would pay the principal, the interest should be forgiven, and he declined the proposition, and in turn, requested the witness to buy the debt (which was about $655 principal, and about $180 interest) for $500, and expressed the opinion that the creditor would accept that sum, held that these words did not take the case out of the statute of limitations. This language imports more an offer to compromise, than a promise to pay the debt.

This was an action of Assumpsit for goods sold and delivered, tried at Fall Term, 1839, of Burke Superior Court of Law, before his honor Judge PEARSON. The pleas were the general issue and statute of limitations. The plaintiff proved the delivery of the goods, and that the price agreed on was $655 10-100 to be paid in April, 1832. The writ was issued 24th April, 1837. The plaintiff read three letters of the defendant, apologizing for not having paid sooner, and professing a perfect willingness to pay &c. The last letter was dated in October, 1833, asking indulgence until December, and promising to pay at that time. The plaintiff then called Mr. McKesson, who swore that, sometime in the year 1836, at the request of the plaintiff, he called upon the detendant and stated to him “that he was authorized by the plaintiff to propose to him that, if he would pay the principal, the interest would be forgiven.” The defendant replied, “I wish you would buy the debt for me for $500: I think by your stating that it is a hard case, he will agree to take that sum.” The witness promised to inform the plaintiff of the defendant's proposition, and the conversation ended. The plaintiff here closed his case and the defendant offered no evidence.

The court instructed the jury that if they believed the evidence, they would find the general issue in favor of the plaintiff, but that they must find the plea of the statute of limitations in favor of the defendant; for to take a case out of the statute of limitations, there must be a promise to pay, either express or implied; that in this case there was no evidence of an express promise, and the evidence, if true, did not establish a state of facts, from which the law would imply a promise. There was a verdict for the defendant, and the plaintiff's counsel obtained a rule for a new trial, on the ground of misdirection by the court. This rule upon argument was overruled, and judgment rendered for the defendant, from which judgment the plaintiff appealed to the Supreme...