Opinion
(December Term, 1859.)
A request by the endorser of a promissory note, before it was barred by the statute of limitations, that the endorsee would collect it or release him soon, is not an acknowledgement from which a new promise can be implied, so as to repel the bar.
ASSUMPSIT, tried before Shepherd, J., at the last Fall Term of WAKE.
S. F. Phillips for plaintiff.
D. G. Fowle and B. F. Moore for defendant.
The case was submitted for the judgment of the court upon the following case agreed: James M. Towles executed a bond, payable to the defendant one day after date, for $900, and the defendant endorsed the same, for value received, to the plaintiff on 15 December, 1854.
The writ was issued on 16 September, 1858, and the defendant (88) relies on the plea of the statute of limitations. To rebut the operation of the statute, the plaintiff introduced a letter from the defendant to the plaintiff, dated 26 September, 1857, which is as follows:
"Sir: — I wrote some two or three months ago to J. M. Towles, and told him you would push on your note if he did not pay, but that I hoped it would not be necessary. I want you to collect it, or release me as endorser, soon; but I don't want you to let him know that I have written to you on this subject. Write me soon, and let me know if he can't pay it. I will be away for two weeks."
It is admitted that this letter refers to the note sued on.
No suit was brought to the term of the court of pleas and quarter sessions for Wake County, held on the third Monday of November; but the plaintiff issued a writ on the ___ day of January, returnable to February Term, 1858, against Towles and the defendant Conrad, which, being returned not executed as to Conrad, an alias was issued to May Term, 1858, at which time a nol. pros. was entered as to Towles.
It is admitted that Conrad was in Tennessee during the time these writs were in the hands of the sheriff.
It is admitted that Towles was possessed of a large real and personal estate until 6 May, 1858, when he assigned the same to a trustee for the payment of his debts, and is now insolvent. If the court should be of opinion for the plaintiff, judgment is to be rendered in his favor for $ _____; whereof $ _____ is principal money, and costs; otherwise, judgment is to be rendered for the defendant. His Honor being of opinion with the defendant, gave judgment accordingly, from which plaintiff appealed.
There is no rule of law more clearly and firmly established by the adjudications of this State than the one that, to repel the bar of the plea of the statute of limitations in the action of assumpsit, there must be an express promise to pay the debt, or (89) a distinct acknowledgement of it as an existing debt from which a promise to pay may be implied. It is equally well settled "that a promise to pay cannot be inferred simply from an admission that the debt had been contracted, and was originally just; or from the further admission that it had not been paid, if, at the same time, the defendant denied his liability, and did not in some way indicate his intention or willingness to pay. It is immaterial on what ground the defendant denies his liability or places his refusal to pay, whether it be because, as he says, the debt was never due, or because he had paid it, or because he insisted on a legal protection from the payment. In either case, the refusal to pay repels the idea of a promise to pay; and there must be such a promise, either expressed or implied, to prevent the bar of the statute." McGlensey v. Fleming, 20 N.C. 263; Wolfe v. Fleming, 23 N.C. 290; Smith v. Leeper, 32 N.C. 86. From the cases of Danforth v. Culver, 11 John. Rep., 146, and Johnson v. Beardslee, 15 ibid., 3, cited by the plaintiff's counsel, the same rules seem to prevail in the State of New York. In the application of these rules to the facts of this case we are of opinion that no promise to pay the debt sued on can be implied from the terms in which the defendant acknowledged it in his letter to the plaintiff. The time of limitations on his contract of endorsement had not then expired, and he could not, in truth, say otherwise than that he was then bound; but it would be a very strained and unwarrantable construction of his language to imply from it a promise to remain liable for the debt longer than he was already. On the contrary, he urged upon the plaintiff to collect the note from the maker, or to release him "soon," thereby plainly intimating a wish to put an end to his liability as endorser. It is impossible to say that he intended to assume any new responsibility, or in any manner to extend the old. Such language cannot be held to be an express promise to pay (90) the debt, nor can there be fairly inferred from it an implied promise to pay at any moment beyond the time limited by law. We, therefore, agree with his Honor in the court below, that the bar of the statute was not repelled.
PER CURIAM. Affirmed.
Cited: Gilmer v. McMurray, post, 480; Wells v. Hill, 118 N.C. 908.