38 S.C. 300 | S.C. | 1893
The opinion of the court was delivered by
For a proper understanding of the questions raised by this appeal, it will be necessary to
The note was admitted in evidence without objection; but when the plaintiff proposed to offer in evidence the payments as credited on the note, objection was made upon two grounds: First. Because the introduction of such evidence would be an attempt to prove a different cause of action from that alleged in the complaint. Second. Because such new promise, having been alleged to have been made more than six years after the accrual of the right of action on the note, it must be in writing, and signed by the party to be charged. The Circuit Judge sustained the objection on the first ground, but overruled the second ground. To the ruling sustaining the objection on the first ground, plaintiff excepted. The jury were charged that the only question for them to determine was whether six year’s had elapsed from the accrual of the original right of action on the note before the commencement of the present action; and if that period had elapsed, then the action was barred by the statute of limitations, and the plaintiff could not recover. Under this charge, the jury rendered a verdict for the defend
Now, as we understand it, a payment on a note made after the statutory period had expired was always regarded as a sufficient acknowledgment to meet the requirements. of the rule above stated, so far as the party who was shown to have made such payment was concerned, but not sufficient to bind his co-contractor. Goudy v. Gillam, 6 Rich., 28; Walters v. Kraft, 23 S. C., 578. But, even if this were not so, it seems to us that
The position taken by appellant, that section 131 of the Code must be construed as relating only to promises made before the right of action on the original promise has been barred by the statute, is untenable, The title under which that section is found is designated “Time of commencing Civil Actions;” and section 94 provides that “Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued,” &c.; and section 112 provides that “An action upon a contract, obligation or liability, express or implied” (with certain exceptions not pertinent to the present inquiry), “must be brought within six years.” Now, as this is certainly an action upon a “contract,” which is “implied” from a payment made on a previous contract, upon which the right of action was barred by the statute, it is certainly one of the actions referred to in that title of the Code, and as such falls under the provisions of section 131, found un.der the same title. If, therefore, as we have held, this is an action upon a new contract to pay a debt originally evidenced by a note, upon which the right of action was barred by the statute, the ouly question is whether such new contract is evidenced in the manner required by section 131 of the Code, to wit: either by a promise in writing, or by a part payment on the original debt, declared to be equivalent to a promise in writing.
The judgment of this court is, that the judgment of the Cir