Taylor v. Stedman, 33 N.C. 447, 11 Ired. 447 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 447, 11 Ired. 447

JAMES TAYLOR vs. JOHN W. STEDMAN

Whore a plaintiff in an action of assumpsit, in order to bar the operation of the statute of limitations, gives in evidence words used by the defendant', the language must be such as, without straining, imports a willingness and intention thereby to assume the debt, or amounts to an unequivocal acknowledgment of its subsistence and obligation.

In a conversation between the plaintiff and the defendant, in relation to the matter in dispute, the former said to the latter, “that matter about Prank’s hire in 1843 must be fixed,” when the latter asked, “will not other notes or judgments do instead of my note?” and the plaintiff remarking, “yes, if they are good,” nothing further passod between them, Helé, that the defendant’s expressions did not revive the debt, and bar the operation of the statute.

The ease of Wolf v Fleming, 1 Ire. 299, cited and approved.

Appeal from the Superior Court of Law of Chatham County, at the Fail Term 1850, his Honor Judge Manly presiding.

This action is assumpsit for the hire of a slave, named Frank, for the year 1842. The suit was brought on the 25th of August 1848, and the defendant pleaded non assumpsit, and the statute of limitation. After establishing the hiring and the price, the plaintiff gave evidence of a conversation between him and the defendant in 1845, in which the plaintiff demanded the payment of this and other debts from the defendant, and the latter denied that he owed the plaintiff on any account, and insisted par> ticularly that he had paid him for Frank’s hire, and thereupon, the plantiff produced a note, given to him by the defendant on another account, on which there was a bab anee due, and contended that the hire of Frank had not been paid. The plaintiff gave further evidence of another conversation between the parties in 1848, in which the plaintiff said, “that matter about Frank’s hire for 1842, must be fixed,” and the defendant, in return thereto, as. ked the plaintiff, “Will not other notes or judgments do, instead of my note,” and the plaintiff replied, “yes, if they are good;” and nothing further passed between them. — ■ The Court instructed the jury, that “the conversation between the parties in 1847 or 1848, wherein the defendant proposed to pay the debt in other notes or judgments, was an acknowledgement of a subsisting debt, which repelled the operation of the statute of limitation s” The jury found for the plaintiff, and the defendant appealed from the judgment.

J. II. Haughton, for the plaintiff.

W. H, Haywood, for the defendant.

Ruffin, C. J.

The Court does not concur in the directions to the jury. The defendant is entitled to have his words fairly construed, so as to ascertain his real meaning, and the statute must stand as a bar, unless his language be such as, without straining, imports a willingness and intention thereb3r to assume the debt, or amounts to an unequivocal acknowledgement of i's subsistence and obligation. Here it was supposed by his Honor, that the defendant proposed to pay the debt, and that the requisite acknowledgement was to be implied from the proposal. But, there was in truth no such proposal. The defendant, upon being pressed by the plaintiff to adjust the dispute about this demand, only enquired, whether the plaintiff would take notes on other people instead of his, which is very different from directly proposing payment in that mannor, since his willingness to settle the controversy in that way might depend much on the value of the securities to be transferee!, and his liabilitj’ on them Hence where the plaintiff said, they must be good, the defendant proceeded no farther in making either an enquiry or proposal. If, however, there had been a distinct proposal to give the plaintiff particular notes or judgments, the requisite promise or acknowledgement could not be inferred therefrom, by itself, for that would convert an offer to pay in notes ora horse into a promise to pay in cash, though so very different, since an offer to pay in notes, like one to give a smaller sum than the alleged debt, is rather a proposal of compromise than assuming the debt anew, which brings the case within that of Wolf v. Fleming, 1 Ire. 290.

Per Curiam. Judgment reversed and venire de novo,