Opinion
August Term, 1858.
Where the account, on which an action was brought, was read over to the defendant, who said, "he supposed it was right, and was willing to settle, and give his note, but he thought the plaintiff had not given him all the credit to which he was entitled," it was Held that these expressions did not amount to a new promise, so as to rebut the statute of limitations.
ACTION of ASSUMPSIT, for goods sold and delivered, tried before SAUNDERS, J., at the last Spring Term of Polk Superior Court.
Edney, for the plaintiff.
Dickson, for the defendant.
The defendant relied on the statute of limitations, to rebut which, the plaintiff offered a witness, who testified that he read the account over to the defendant, who said in reply, he supposed it all right, and he was willing to settle, and give his note, but he thought the plaintiff had not given him all the credit to which he was entitled.
His Honor was of opinion, that this acknowledgment took the debt out of the statute. Defendant excepted.
Verdict and judgment for plaintiff. Appeal by defendant.
To avoid the operation of the statute of limitations, there must be a promise, either express or implied, to pay a certain and definite sum, or an amount capable of being reduced to a certainty, by reference to some paper, or by computation, or in some other infallible mode, not depending on the agreement of the parties, or the finding of arbitrators, or a jury; McRae v. Leary, 1 Jones' Rep. 91.
The promise relied on, in our case, fixes no definite sum, but the amount is left open, — dependent on the alleged credits, as to which there might be a disagreement, which could only be settled by reference to a jury, or to arbitration. So it falls within the principle stated above. In shaw v. Allen, Busb. Rep. 58, the promise relied on, was nearly in the precise words used in this case. There is error.
PER CURIAM. Judgment reversed.