Opinion · Supreme Court of North Carolina

Kirby v. . Mills

Kirby v. . Mills, 78 N.C. 124 (N.C. 1878)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1878-01-05
Topic: general

Smith, C. J. (After stating the facts as above.) The only question before us is as to the sufficiency of the promise to remove the statutory bar, and the correctness of the ruling of the Court thereon. 1. There have been numerous cases in this State where the Court has been called upon to decide upon the sufficiency of the words used to repel the statute, and we think they «establish a principle which will include the case now before us. The following have been held sufficient to enable the plaintiff to recover, notwithstanding the lapse of time ; — “ I have no money, but will call in a few days and settle it.

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Cited by: 9 opinions

KIRBYv. MILLS,78 N.C. 124(1878)

A. H. KIRBY, SURVIVING PARTNER OF KIRBY WILSON, v.

COLUMBUS MILLS.

Supreme Court of North Carolina

(January Term, 1878.)

Statute of Limitations — New Promise — Promise to Attorney.

1. A promise by M. that "he would see his brother and would pay the debt" is sufficient to remove the bar of the statute of limitations.

2. A promise (relied on to avoid the statute of limitations) made to an attorney is in law a promise made to the principal, and can be declared on as such.

APPEAL fromCloud, J., at Spring Term, 1877, of CABARRUS.

This action was brought to recover the value of a promissory note made in South Carolina on 7 March, 1862, by the firm of Govan Mills Co. (of which the defendant is alleged to be a member) to Kirby Wilson (of which the plaintiff is surviving partner), in the sum of $216.35, payable one day after date. The answer sets up several defenses, and among them that of the statute of limitations, to rebut which the plaintiff replied a new promise made within three years next before the commencement of the suit.

On the trial before the jury the plaintiff introduced E. H. Bobo, an attorney, who testified that in 1871 the plaintiff placed the note mentioned in the complaint in his hands for collection; that he presented it to the defendant for payment, when the defendant promised that he would see his brother and would pay the debt. No other evidence of a new promise was offered. The evidence being closed, the judge remarked that he should hold that the new promise not having been made to the creditor himself, but to his attorney in whose hands the note had been placed for collection, was not sufficient to take the case out of the operation of the statute. In submission to this opinion of the court, the plaintiff took a nonsuit and appealed. (125)Page 84

A. Burwell for plaintiff.W. J. Montgomery and Wilson Son for defendant.

SMITH, C. J., after stating the facts as above:

The only question before us is as to the sufficiency of the promise to remove the statutory bar, and the correctness of the ruling of the court thereon.

1. There have been numerous cases in this State where the Court has been called upon to decide upon the sufficiency of the words used to repel the statute, and we think they establish a principle which will include the case now before us. The following have been held sufficient to enable the plaintiff to recover, notwithstanding the lapse of time: "I have no money, but will call in a few days and settle it. I do not intend to cut the plaintiff out."Smith v. Leeper,32 N.C. 86. "Unless J. R. has paid it for me, it is a just debt, and I will pay it"; and again, "It is a just debt, and I will pay it if I cannot prove that it has been settled by J. S."Richmond v. Fuqua,33 N.C. 445. It has been repeatedly declared, however, that to repel the statute the new promise or acknowledgment must be an express promise to pay a certain debt absolutely or conditionally, or such an admission of facts that such promise may be inferred. In the case before us the defendant promises to see his brother and pay the very note in suit.

2. The promise to be effectual must also be made to the creditor and not to a stranger. A promise to pay a note which was afterwards transferred does not follow the transfer, and is unavailable to the holder of the note.Thompson v. Gilreath,48 N.C. 493. A promise made to the other members of a firm by a newly admitted partner, to assume (126) the liabilities of the firm, will not inure to the benefit of the creditor who seeks to enforce his demand.Morehead v. Wriston,73 N.C. 398. In like manner, an agreement among partners at the dissolution of the firm whereby each partner takes a share of the joint effects, and contracts to pay certain specified debts, does not revive the creditor's cause of action which has been lost by lapse of time.Parker v.Shuford,76 N.C. 219. In this case the judge who delivers the opinion of the Court says: "And that raises the question whether the promise to pay or the acknowledgment of the subsisting debt must be tothe creditor himself, or whether it is sufficient if made to a third person. We are of the opinion that it must be made to the creditor himself."

InFaison v. Bowden,76 N.C. 425, the Court says: "We have decided at this term, inParker v. Shuford, that the acknowledgment or promise must be made to the creditor himself."

The judge below entirely misconceives the meaning of the Court in using the language quoted above, in supposing it was necessary that the promise should be made directly to the creditor in proper person,Page 85and could not be made to his attorney. The Court was discriminating between thecreditorandpersons having no privity or connection with the debt, in saying that the former could not take benefit of a promise made to the latter to avoid the statute. But a promise made to an attorney is in law a promise made to the principal, and can be declared on as such.

We desire to repeat the suggestion heretofore made to the judges in reference to the practice in cases like the present. Had the point of law on which the nonsuit was suffered been reserved with consent of counsel, and the jury been permitted to render their verdict upon the other issues, the case might have been finally disposed of here, and thus the expense and inconvenience of another trial avoided. The verdict, if for the defendant upon the issues, may have rendered (127) the point of law reserved immaterial; and if for the plaintiff, the judge could then have set aside the verdict and directed a nonsuit. If upon the appeal it is found that he erred in this, the order setting aside the verdict would be reversed and judgment be here entered upon the verdict.

As the case comes before us, we are compelled to order a new trial.

PER CURIAM.Venire de novo.Cited: Briggs v. Smith,83 N.C. 309;Shaw v. Burney,86 N.C. 332;Hedrick v. Pratt,94 N.C. 104;Hussey v. Kirkman,95 N.C. 67;Davis v.Ely,100 N.C. 287;Tiddy v. Harris,101 N.C. 592.

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