Vass v. Conrad, 52 N.C. 87, 7 Jones 87 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 87, 7 Jones 87

W. W. VASS v. J. W. CONRAD.

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 repelí the bar.

This was an action of assumpsit, tried before Shepherd, J., at the last Fall Term of Wake Superior Court.

The case was submitted for the judgment of the Court, upon the following ease agreed,: James M. Towles executed a bond, payable to the defendant, one day after date, for nine hundred dollars, and the defendant endorsed the same, for value received, to the plaintiff on 15th of December, 1854.

The writ was issued on the 16th day of September, 1868, and the defendant 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 September 26th, 1857, which is as follows :

“Sir: I'wrote some two or throe 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 bo necessary. I want you to collect it, or release me, as endorser, soon ; but I don’t want yon 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 3rd 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 the 6th of 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.

Phillips, for jdaintiff.

Fowle and Moore, for defendant.

Rattle, J.

There is no rule of law more clearly and firmly established by the adj udications of this State, than the one that, to repel the bar of the plea of the statute of limitationsin the action of assumpsit, there must be an express promise to pay the debt, or a distinct acknowledgment of it as an existing debt, from which a promise to pay it 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 and Wolfe v. Fleming, 4 Dev. and Bat. 129 ; Wolfe v. Fleming, 1 Ire. Rep. 290 ; Smith v. Leeper, 10 Ire. Rep. 86. From the cases of Fanforth 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, sa}7 otherwise, than that ho 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. Snch language cannot be held to be an express promise to pay the debt, nor can there be fairly inferred, from if, 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,

Judgment affirmed.