Simonton v. . Clark , 65 N.C. 525 ( 1871 )

READE and BOYDEN, J. J., dissenting. The plaintiff's testator held a promissory note on Clark, Shuford Co., for $1,625, executed and due the 30th of January, 1858. The defendant, A. Clark, is the executor of A. Clark, Sr., who was a member of said firm. The defendants in their answer did not deny the partnership nor the execution of the note, but relied upon the statute of limitations.

It was in evidence, that A. Clark, Sr., stated that in March, 1863, he had been over to the house of the plaintiff's testator, to pay him the note of about $1,600, which he held on the firm of Clark, Shuford Co., that he offered to pay him the note first in Confederate money, and then in bank bills, which he refused to receive, and demanded specie.

The defendant's counsel asked the Court to instruct the jury, that if the facts stated were true, they did not remove the bar of the statute of limitations, and the plaintiff was not entitled to recover. Which instructions, his Honor declined giving, but instructed the jury, that if they believed from the evidence that the defendant's testator went to the house of the plaintiff's testator, and offered to pay off said note in Confederate currency, or bank bills, and that he intended thereby to recognize the debt as a subsisting debt, and that he then owed it, that the plaintiff would be entitled to recover. Defendants excepted verdict for plaintiff. Judgment and appeal. (526) The principles of law which govern this case, have been so often considered by this Court, that they need no further discussion. 2 Battle's Digest, 877.

It is only necessary to consider the general results of decided cases, and apply the well settled rules of law to the case before us.

The statute of limitations operates upon the remedy merely, and does not extinguish the debt. To revive the remedy taken away by the statute of limitations, there must be an express or implied promise to pay the debt. Where a plaintiff relies upon an implied promise to sustain his action, he must show such an unqualified and direct acknowledgment on the part of the debtor, of a certain existing debt, and present obligation and willingness to pay the same, that the law can imply a promise to pay upon a future demand.

A mere acknowledgment of the debt, is not sufficient to repel the statute; but there must be such facts and circumstances, as show that the debtor recognized a present subsisting liability, and manifested an intention to assume or renew the obligation. In our case the defendant's testator offered in 1863, to pay the debt sued on, and which was barred by the statute of limitations, in Confederate money or bank bills. This offer of payment was refused by the plaintiff's testator, and specie was demanded. The debtor in no way accorded to this demand; and there is nothing from which the law can imply a promise on the part of said debtor, to pay in specie, or in any other kind of money upon a future demand.

The act of the defendant's testator, was a mere offer to pay in the currency then in circulation, and no intention was in any way (527) shown of assuming or renewing the obligation.

We think the proper inference to be drawn from the evidence, is, that the defendant's testator was willing to pay the debt in the currency of the country, which was then abundant; and as that was refused, his purpose was to rely upon the statute of limitations.

Questions like the present, will soon cease to be matters of controversy in the Courts, as the C.C.P., sec. 51, prescribes, "That no acknowledgment or promise shall be received as evidence of a new or continuing contract, whereby to take a case out of the operation of the statute of limitations, unless the same be contained in some writing signed by the party to be charged thereby," etc.

There was error in the ruling of his Honor.