Long v. . Jameson and Lowrance , 46 N.C. 476 ( 1854 )

In this case it appeared that Miles Lowrance, the testator of the defendants, was the guardian of David Long and John Long, children of David; that, upon the death of the father, in 1836, the children (being then of tender years,) were taken by the plaintiff and kept by him until the appointment of the defendants testator as guardian in 1840.

It appeared further, that John was the eldest of the boys, of healthy constitution, but that David was delicate and sickly. Upon the appointment of the guardian, he took custody of the elder child, and upon being told to take the other, as the plaintiff did not wish to keep either, and could not afford to do it, the guardian replied, that "he might keep that one, that the child had some property, and he should have pay."

It was also in evidence, that the child continued sickly, and was a portion of the time seriously deceased, requiring much attention and tender nursing, which he received from Long and his wife.

A witness on the part of the plaintiff, further proved that in January, 1847, after the death of the defendants testator, John A. Lowrance, one of the executors, declared that he was going to see the plaintiff, who, he understood was not satisfied with the services of the boy as a compensation for maintaining him, and in the interview told the plaintiff, (who was sick at the time and unable to make out his account,) to bring it forward and hewould settle it. The wife of the plaintiff said that "if the sum was credited upon a note of her husband, which the executor held, payable to his testator, as guardian, it would be satisfactory, as they did not want the money. The executor said he would settle it. As this Court approve the charge of his Honor upon the liability of the defendant's testator, it is deemed unnecessary to state it.

With respect to the Statute of Limitations, the Court instructed the jury, that a promise by the executor to credit a note, would not relieve the debt from the bar of the statute, nor would the promise upon the rendering of the account to adjust the same with the plaintiffs, and pay such sum as he, the executor, might deem just, have that effect; but a promise to pay such sum as the plaintiff might deem just, when he should bring forward the account, would release the demand from the operation of the statute, and, in the existing state of the testimony, it was referred to the jury to inquire what was the true nature of the promise made in 1847. The suit was brought in April 1849. The jury returned a verdict for the plaintiff.

The defendants excepted. Rule for a venire de novo; rule discharged and appeal to this Court. There is error. The declaration made by the defendant, in 1847, as stated in the case, does not prevent the bar of the Statute of Limitations. The action was brought within three years after that time. There is no error in the charge, as to the liability of the defendants, on the promise which the testator made at the time he induced the plaintiff to keep the little boy with him, and the only question is, as to that portion of it which refers to the Statute of Limitations. "In 1847 (the case states) the defendant declared he was going on to see plaintiff who, he understood, was not satisfied with the services of the boy as a compensation for maintaining him, and in the interview, he told the plaintiff, who was a sick and unable to make out his account, to bring it forward, and he would settle it. The wife of the plaintiff then said that if the sum was credited upon a note which the executor held payable to his testator as guardian, it would be satisfactory, as they did not want the money. The executor said he would settle it." The first part of his Honor's charge is correct; the exception is to the latter part. The jury were instructed, "but a promise to pay such sum as the plaintiff might deem just, when he should bring it forward, would release the demand from the operation of the Statute." In this there is error. This case brings up the often disputed question what declaration by a defendant will take a case out of the Statute of Limitations.

The original departure from the Statute has proved a legal Pandora's box, and will continue so, a fruitful source of litigation too firmly fixed upon the Courts to be now got rid of by them. We are saved all trouble of investigation in drawing lines of discrimination, most frequently in themselves unsatifactory, [unsatisfactory] and hard to be drawn, by the recent cases of McBRYDE v. GRAY, Busbee 420; McREA v. LEARY, ante. 91. The opinions, in both these cases, were drawn by one brother BATTLE and all the other cases upon this subject elaborately examined. In the first, the declaration relied on by the plaintiff, was that the defendant's testator, in less than three years before the action brought, declared "that he intended to pay the plaintiff for keeping the old woman until he was satisfied." The Court decide "that the declarations were too vague and indefinite, to amount to an express promise to pay the plaintiff's claim, or to such an acknowledgement as would justify the inference of an implied promise to pay it, and there is no account rendered nor anything else by which the claim can be rendered more definite and certain," and it was held the declaration did not take the case out of the Statute. The second case is still more to the purpose. It was proved that the account which was entered upon the plaintiff's books had at different times been handed to the defendant's testator, and that a few days before his death, the testator said, "my account has been handed in, I own John McRea a large amount of money, and am afraid he is getting uneasy, but as soon as I finish the building I am now working on, I will call and settle it." In delivering the opinion, the Court ruled "that if the account handed in by the defendant's testator was referred to by him, as that account was not produced, and there was no evidence of its amount, there was no means of ascertaining it by computation or otherwise, and there was nothing to prevent the operation of the Statute," c. In our case, at the time the declaration relied on by the plaintiff was made, the latter had no account reduced to writing, for the case states that at the time the declaration was made, the plaintiff was sick and unable to make out his account. There was, then, no means of ascertaining the amount due from which by computation or otherwise, that amount could be ascertained, under the principle id certum est quod certumprotest reddi.

The principle established by these and other cases, is, "that to take a case out of the Statute of Limitations, there must be a promise expressed or implied to pay a certain definite sum, or an amount capable of being reduced to certainty by reference to some paper, or by computation, or in some other infallible mode not dependent on the agreement of the parties on the finding of arbitrators, or of a jury." We consider the principle thus expressed as a wholesome one, and as near an approach to the Statute as any departure from its expressions will allow. For this error the judgment is reversed, and a venire de novo awarded.

PER CURIAM. Judgment reversed.