Cooper v. Jones.

38 S.E. 28 | N.C. | 1901

It is the policy of the law that there shall be an end of litigation — interest reipublicae ut sit finis litium. And after a cause is once barred, it can not be revived except by a strict and full compliance with the statute permitting it.

The "due bill" sued upon was barred before the action was begun, and the statute of limitations was pleaded. The (41) plaintiff then declared upon a new promise and sets up two letters written him by the defendant. The language relied upon in one letter to establish the promise is, "You have my due bill, and I am going to pay it as soon as I possibly can." In the other, it is, "As soon as I can, I am going to settle all of my indebtedness." The latter expression is vague and indefinite. The former is conditional — predicated upon the possibility of his ability.

It has been uniformly held by this Court that the acknowledgment and promise, in order to sustain an action under section 172 of The Code, must be express, specific and unconditional. See cases cited thereunder in Clark's Code.

This case differs from that of Taylor v. Miller, 113 N.C. 340; in that Miller wrote, "I promise to settle both of your claims the first of next month"; while in this case the promise is to pay "as soon as I possibly can." In the former, the promise was distinct, specific and certain; in this case, it is conditional.

This construction is sustained in Mallock v. Chadwick, 71 Maine, 313, the language being, "when I was (am) able." Bidwell v. Rogers, 10 Allen (Mass.), 438 ("as soon as I can"); Sedgwick v. Gerding, 55 Ga. 261 ("as soon as I have the money I shall remit"); Tompkins v. Brown, 1 Denio (N. Y.), 247 ("as soon as he is able"). In no view can the language used in the letter be so construed as to come within the requirements of the statute. Code, sec. 172.

There is error.

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