Opinion
June Term, 1850.
A promise of a party that he will settle with another will only take a claim out of the statute of limitations when it clearly appears that the promise referred to that particular claim.
APPEAL from the Superior Court of Law of CUMBERLAND, at a Special Term in February, 1850, Ellis, J., presiding.
W. Winslow for plaintiff.
Strange for defendant.
The action is assumpsit for money paid for the defendant, and was brought in October, 1839. Pleas, non assumpsit (87) and statute of limitations. The plaintiff proved that in 1830 he paid to one Murphy the sum of $70 for the defendant; and he further examined one Jennings as a witness, who stated that, shortly after this suit was brought, he was in Mobile, in Alabama (where the defendant then resided), and received a letter from the plaintiff, written from Fayetteville, in this State, which he showed to the defendant, who read it and flew into a passion and said, "I will not settle with you; but I am going to Fayetteville shortly, and will settle with Mr. Arey himself." The witness did not produce the letter, and was unable to state its contents; but he said further, that the defendant and he had other talk at the time, and he thought the Murphy claim was mentioned in their conversation.
The court instructed the jury that the action was barred, unless it was taken out of the statute of limitations by the testimony of Jennings; but that if they believed the words spoken by the defendant to Jennings referred to the claim in suit, they amounted to an acknowledgment of it as a subsisting debt, and the statute would not bar. The jury found for the plaintiff, and the defendant appealed from the judgment.
The Court would concur in the opinion given to the jury, if the contents of the letter to which the defendant referred sufficiently appeared, so as to enable us to see that the defendant intended to promise to settle this claim. The case would then be similar to that of Smith v. Leeper, 32 N.C. 86, in which the promise was to settle an account that had been before stated and was then shown to the defendant. That circumstance defined and limited the language of the party, so as to make it applicable to a certain debt then in the contemplation of the person, and to that only, as in all fairness (88) and justice it should be. It was, in terms, to settle the particular debt appearing upon the account before the parties. But it is entirely otherwise in the present case. Nothing appears here, except that a letter from the plaintiff to the witness was shown to the defendant, and the defendant, after reading it, said he would settle with the defendant. Settle what? Why, it could only be the matter mentioned in that letter. What was that? We are uninformed. It is but a bare conjecture that it may have related to this demand; and that is too vague to authorize an inference that the promise was in fact to pay this very debt. It is impossible to understand the language used by the defendant without some colloquium; for, "I will settle with Mr. Arey" is in itself senseless. That is not furnished here, for the want of a knowledge of the subject of the letter. The subsequent part of the testimony of the witness is equally unsatisfactory. He could not remember certainly that "the Murphy claim," as he calls it, was mentioned in the conversation, though he thought it was; but he does not tell us what was understood by that description, nor does he say what was said in relation to it, much less that the defendant agreed to settle that claim. Such loose language is unfit to go to a jury as evidence of a promise to pay a debt for which the party was not before bound. It would virtually take away the protection which the Legislature meant to give against stale demands. The present case seems clearly to fall within the rule laid down in the previous ones of Peebles v. Mason, 13 N.C. 367, and Smallwood v. Smallwood, 19 N.C. 330.
PER CURIAM. Judgment reversed, and a venire de novo.
Cited: Moore v. Hyman, 35 N.C. 276.
(89)