16 S.E. 1023 | N.C. | 1893
The plaintiff declared on an account for $235.07, dated 29 November, 1887, for goods sold and delivered. The defendant admitted the sale and delivery of the goods at the price named, but denied the (357) indebtedness, and pleaded the statute of limitations.
The plaintiff replied, alleging a new promise made to Benjamin Lyon, who, it was admitted, was the agent of the plaintiff, and to support such new promise put in evidence a letter in the following words and figures, to wit:
GOLDSBORO, N.C. 6 October, 1891.
Mr. BENJ. LYON, Wilmington, N.C.
My Dear Sir: — Your letter of last night to hand, and in reply thereto would say that I reckon I might as well hold on awhile in taking hold of your snuff, as I feel quite a delicacy in asking your firm for further credit, knowing that I have been unable to pay what I owed them in Wilson. I have perfect confidence in paying what bills I may contract in the future, and am better able to do so now than I was then. Let me get straight with the world, then I will ask for their confidence, but never till then. What confidence is given me must be voluntary.
With the highest regards for you, I am,
Yours truly, C. F. GRIFFIN.
The plaintiff, also, for the purpose of identifying this as the Wilson debt referred to in the letter, introduced a deed of assignment, made in Wilson, N.C. by the defendant, dated 2 January, 1888, in which, among the creditors named to be paid among his general creditors, was the plaintiff, as follows: "George W. Helm Co., Helmetta, New Jersey, $235.07, due by account." *279
The court, being of the opinion that the evidence was not sufficient to repel the statute of limitations, gave judgment against the plaintiff for the cost of the action, from which judgment the plaintiff appealed.
Under the former statute of presumptions an acknowledgment of the nonpayment of a debt coming within its operation would rebut the presumption of payment arising from the lapse of time. But now we have no statute of presumptions. The Code, sec. 138, prescribes a statute of limitations only. The acknowledgment which is now requisite as evidence of a new or continuing contract must not only be in writing (The Code, sec. 172), but it must be an unconditional promise to pay the debt. Bates v.Herren,
The letter here relied on contains no promise whatever, neither express nor implied, conditional nor unconditional. It is in no sense a contract. At the most, it is a mere acknowledgment of the indebtedness, which had become barred, but without any promise to pay it. The bar of the statute is, therefore, not removed.
AFFIRMED.
Cited: Phillips v. Giles,
(359)