Jacob Kull & Sons v. Farmer, 78 N.C. 339 (1878)

Jan. 1878 · Supreme Court of North Carolina

78 N.C. 339

JACOB KULL & SONS v. W. D. FARMER.

Premise to Pay Debt Discharged in Bankruptcy.

1. A parol promise to pay a debt discharged under the Bankrupt Act is a distinct cause of action and the unpaid prior legal obligation, notwithstanding the discharge, is a sufficient consideration to support it.

2. Where the defendant promised to pay such debt more than three-years prior to the commencement of the action, and again promised to pay it within three years, and suit was brought upon the latter-promise ; Held, that the plaintiff was entitled to recover.

(Falls v. Sherrill, 2 Dev. & Bat. 371 ; Hornthall v. McRae, 67 N. C. 21 Fraley v. Kelly, Ibid. 78, cited and approved.)

Civil Action, tried at Fall Term, 1877, of Wilson Superior Court, before Eure, J.

The defendant being indebted to the plaintiffs on a promissory note, was, in the year 1868 or 1869, under proceedings instituted in the proper District Court- of the United States, declared a bankrupt; and afterwards ■ by a decree of the? Court discharged from his debts. After the adjudication in-bankruptcy and before his discharge, the defendant promised to pay the debt, and after his discharge again promised to' pay it. Neither of the prom ises was in writing. This action was commenced more than three years alter-making the ■first, and. within three years after making the last promise to pay the debt. Upon these facts admitted in the pleadings •or found by the jury, judgment was rendered for the plaintiffs and the defendant appealed. •

Messrs. Busbee Busbee. for plaintiffs.

Messrs. Kenan Murray and Geo. M. Smedes, for defendant.

Smith, C. J.

(After stating the tacts as above) Although •there are conflicting decisions elsewhere, it is a well settled •doctrine in this State, that the legal effect of a new promise .relied on to remove the bar of the statute of limitations, is to put that impediment out of the way and revive the original cause of action. Hence it is held that a new promise .made after the commencement of suit is sufficient to repel the statute, and enables the plaintiff to recover. Falls v. Sherrill, 2 Dev. & Bat. 371. It is otherwise where a promise Is made to pay a debt discharged under the Bankrupt Act. In this the promise itself becomes or may become the cause of action and the unpaid prior legal obligation, notwithstanding the discharge, is a sufficient consideration to support it.

Where the cause of action has accrued since the adoption -of the Code of Civil Procedure and is barred by lapse of time, the new promise to have any efficacy must be in writing. C. C. P. § 51. If the plaintiffs had declared on the first promise and relied on the last, as evidence to remove the statutory bar, the provision of the Code would apply .and they would fail. But the plaintiffs rely on the last promise as constituting the foundation of their right to re-■eover, and this was within .three years next before the issuing of the summons. We see no reason why this cannot be -done ; nor why a consideration sufficient to sustain the one, Is not also sufficient to sustain the other promise ; nor can we understand how upon any legal principle a complete and •full remedy existing independently, can be lost or impaired by pi’oof of an unfulfilled prior promise to pay tbe debt,, which if declared on would be barred by the lapse of time. We deem it only necessary to refer to two cases. Hornthall v. McRae, 67 N. C. 21; Fraley v. Kelly, Ibid, 78.

No error.

Per Curiam. Judgment affirmed..