August Term, 1849.
1. To repel the statute of limitations, a promise to pay must be proven, either express or implied.
2. The law will imply a promise when there is an acknowledgment of a subsisting debt, unless there be something to rebut the implication.
3. If one pays a debt in part, the law implies a promise to pay the balance, in the absence of any circumstance to negative such a promise.
4. When a copy of an account was shown to the defendant, and she said "she had no money, but would call in a few days and settle it," that "she did not intend to cut him out of it": Held, that this was an explicit acknowledgment of a subsisting debt, from which a promise to pay might be implied, if, indeed, there was not evidence of an express promise.
APPEAL from the Superior Court of Law of GASTON, at Fall Term, 1848, Moore, J., presiding.
This was an action of assumpsit, commenced before a justice of the peace in March, 1848, and brought by appeal to Gaston Superior Court of Law. On the trial the plaintiff introduced a witness, and showed him the account for the recovery of which this suit was brought. After the witness had examined the account, he stated that he drew it off from the account book of the testator, before his death, for the purpose of having a settlement with the defendant; that he went with the account to the house of the defendant, and made known to her the object of his visit. She requested the witness to hand the account to her son, who was present, and knew more about the work charged in the account than she did. The witness handed the account to the son, who read over each item in the account in the hearing of the defendant, and neither the son nor the defendant (87) made any objection to any charge in the account until the son came to a charge for "ironing a wagon." This charge the son said was too much, and some conversation then took place in relation to the said charge, between the witness and the son of the defendant, during which conversation the defendant remarked to the witness that she would settle it with the testator of the plaintiff. No item of the said account was read by the son of the defendant after the charge for ironing the wagon. The son of the defendant did not read out the prices of any of the items, except the one for work upon the wagon, nor was the total amount of the account made known to the defendant. It was in proof that the defendant was an unlettered person, and could not read writing. The last item of the account was in 1841. A few days after the witness had called upon the defendant, as above stated, he called upon her again, with the same account, and requested her to settle it. She stated that she had no money then; that she would come shortly and settle with the plaintiff's testator, as she thought she and the old man could settle better than she and the witness; that she would have called, when she passed the old man's house a few days before, but it was a wet day; that she did not intend to cut him out of it. At this last visit the witness did not show the account. These conversations all took place within three years before the commencement of this suit. Upon this evidence the defendant's counsel insisted there was no evidence to take the case out of the statute of limitations. The presiding judge being of this opinion, the plaintiff submitted to a judgment of nonsuit and appealed.
Guion for plaintiff.
Lander for defendant.
To repel the statute of limitations a promise to pay must be proven — either express or implied. The law will always imply a promise when there is an acknowledgment (88) of a subsisting debt, unless there be something to rebut the implication. If one pays a debt in part, the law implies a promise to pay the balance, in the absence of any circumstance to negative such a promise.
This being the general rule, the question is whether there was evidence to bring this case within its operation. The judge below thought there was not. We have come to a different conclusion.
A copy of the account was shown to the defendant and she was requested to settle it. She said "she had no money, but would call in a few days and settle it with the old man. She did not intend to cut him out of it." The defendant had a direct reference to the account, which was drawn off and handed to her; and although, at the first conversation, there was some objection made to the price of one item, we think there was an explicit acknowledgment of a subsisting debt, from which a promise to pay will be implied, if, indeed, there was not evidence of an express promise, having sufficient certainty to support an action, by aid of the maxim, "id certum est, quod certum reddi potest."
The direct reference to the stated account distinguishes this from Peebles v. Mason, 13 N.C. 367, and brings it within the rule laid down in that case.
PER CURIAM. Judgment of nonsuit set aside, and venire de novo.
Cited: Arey v. Stephenson, 33 N.C. 87; Moore v. Hyman, 35 N.C. 273; Shaw v. Allen, 44 N.C. 59; McBride v. Gray, ib., 421; McRae v. Leary, 46 N.C. 93; Hussey v. Burgwyn, 51 N.C. 386; Vass v. Conrad, 52 N.C. 89; Kirby v. Mills, 78 N.C. 125; Hewlett v. Schenck, 82 N.C. 236; Long v. Oxford, 104 N.C. 409; Cecil v. Henderson, 121 N.C. 246; Supply Co. v. Dowd, 146 N.C. 195.