McBride v. . Gray

44 N.C. 420 | N.C. | 1853

The only evidence offered on the trial to take the plaintiff's case out of the statute of limitations, was that the defendant's testator, a year before his death, and within less than three years before the bringing of the action, said that "he intended to pay Thomas (the plaintiff) for keeping the old woman, until he was satisfied." This declaration was testified to by two witnesses, one of whom stated that at the time he heard defendant's testator say so, the plaintiff and he spoke also of $2 being then paid. His Honor, Ellis, J., before whom the case was tried, at WILKES, at Fall Term, 1852, thought the evidence repelled the bar of the statute, and the jury accordingly found for the plaintiff, and judgment having been rendered upon the verdict, the defendant appealed. The instruction given by his Honor to the jury that the facts proved amounted to a new promise and repelled the operation of the statute of limitations, is opposed by the principle declared by this Court in several recent cases, and cannot therefore be sustained. The case of Sherrod v.Bennet, 30 N.C. 309, was an action of assumpsit upon a quantum meruit for work and labor done by the plaintiff as an overseer or manager of the testator of the defendant. The services were alleged to have been rendered for several years, but were barred by the statute of limitations, unless the testator had acknowledged the debt, or promised to pay it within three years before the commencement of the suit. The testimony offered for that purpose was that of three witnesses, one of whom stated that the testator said to him "that the plaintiff had lived with him a good long while, and he intended he should be paid for his services"; a second stated that just before the plaintiff left the employment of the testator, the latter told the witness "that the plaintiff's wages were not limited, and he intended to make him compensation at his, the testator's death"; and the third testified that the testator told him "that the plaintiff had not been paid for his services, but he intended to pay him, and he hoped at the day of his death the plaintiff would be satisfied." The Court held, after a review of the previous decisions in this State upon the subject, that the declarations of the testator were too vague and indefinite to amount to an express promise to pay the plaintiff's claim, or to such an acknowledgment of it as would justify the interference of an implied promise to pay it. The declarations in this case are equally vague and indefinite, and there is no account rendered, as in Smith v. Leeper, 32 N.C. 86, nor anything else by which they can be made more definite and certain. These declarations, then, amount at most but to a promise to pay an indefinite sum, which is said in Moore v. Hyman, 35 N.C. 272, to be of "no force, and cannot be aided by the maxim, `id certum est quod certum reddi potest'; for that maxim only applies to cases where there is a reference to some paper, or where the thing can be made certain by computation or figures, or in some other infallible mode, not depending on the agreement of the parties, or the findings of (422) arbitrators, or the finding of a jury." See, also, Shaw v. Allen's Executors, ante, 58. The judgment must be reversed, and avenire de novo awarded.

PER CURIAM.

Judgment reversed and a venire de novo awarded.

Cited: McRae v. Leary, 46 N.C. 93; Long v. Jameson, ibid., 478; Faisonv. Bowden, 72 N.C. 407; Taylor v. Miller, 113 N.C. 342; Shoe Store Co.v. Wiseman, 174 N.C. 717.