233 N.C. 175 | N.C. | 1951
Lead Opinion
The correctness of the ruling on the statute of limitations turns on the validity of the credits entered by plaintiff on the notes in suit 12 January, 1938. This was a matter for the jury under proper instructions from the court. Lee v. Manley, 154 N.C. 244, 70 S.E. 385; Miller v. Womble, 122 N.C. 135, 29 S.E. 102; Young v. Alford, 118 N.C. 215, 23 S.E. 973.
The contention that the whole of the compromise settlement should first be used to repay the money loaned with interest before any part of the settlement could be applied to the real estate notes would seem to overlook the testimony of the plaintiff that he neither charged nor received
Nor is the prayer of a complaint necessarily controlling in the disposition of a recovery where the plaintiff recovers not according to his prayer, but by compromise, or by agreement dehors the prayer. Eecovery is usually determined by evidence, or agreement, and not by the plaintiff’s demand.
The plaintiff admits that the first note — the one that matured 1 November, 1927 — was already barred at the time of the credit of 12 January, 1938, hence under the decision in Bond v. Wilson, 129 N.C. 387, 40 S.E. 182, he abandons any further right to recover on this note.
No error has been made to appear on defendants’ appeal. They could have avoided any embarrassment by paying the prior encumbrance rather than allowing suit to be brought to enforce it. Moreover, it may be doubted whether the allegations of the answer are sufficient to state a counterclaim. Smith v. McGregor, 96 N.C. 101, 1 S.E. 695.
On plaintiff’s appeal, New trial.
On defendants’ appeal, Affirmed.
Dissenting Opinion
dissenting: At the time the defendant made compromise settlement of the claim and delivery proceeding instituted on the chattel mortgage, the note secured thereby was more than ten years old. The note was for $400. Plaintiff testified it was given for $114.85, money advanced, and the balance was additional security for real estate notes. The plaintiff, in his complaint in the claim and delivery action, demanded interest on the debt. That demand has never been withdrawn. Nor, on this record, have the defendants ever been notified of his decision (appar
Wben defendant purchased tbe land, be conveyed to plaintiff, in part payment, property valued at $1,800. There was an undisclosed outstanding mortgage on tbe property conveyed to defendants in tbe sum of $3,500, together with taxes for five years, which defendants were compelled to satisfy in order to save tbe property.
In August 1927 plaintiff instituted an action to enjoin tbe defendants from cutting timber standing on tbe land conveyed to them. In bis complaint be swore that be held no security for bis notes other than tbe real estate mortgage. After defendants learned of tbe outstanding first mortgage, they made no further payment on tbe real estate notes and resisted a suit on tbe $700 note. In 1928 plaintiff undertook to foreclose bis real estate mortgage.
These facts, in my opinion, repel any suggestion that defendants paid tbe $162.50 in recognition of tbe alleged debt represented by tbe real estate notes, or with tbe intent that any part thereof should be credited thereon.
This is not a case where tbe debtor made a payment without directions as to its application, leaving tbe creditor to credit it on either debt. Tbe payment was made for tbe specific purpose of settling tbe claim and delivery action and protecting tbe defendants’ personal property conveyed in tbe chattel mortgage. Tbe payment was not sufficient to cover tbe money advanced with interest thereon which was tbe primary consideration of the mortgage. The balance, if any, was to secure the real estate notes, or so plaintiff testified.
A payment sufficient to arrest the statute of limitations must be made by the debtor as a part payment on a larger indebtedness, known to and recognized by him and under circumstances which raise an implied promise to pay tbe balance. 34 A.J. 267. To have tbe effect of tolling tbe statute, tbe payment must be made and accepted as payment of part of the particular indebtedness in question under circumstances such as warrant a clear inference that tbe debtor recognizes tbe whole of tbe debt as an existing liability and indicates bis willingness, or at least his obligation, to pay tbe balance. Tbe payment must be distinct, unequivocal, and without qualification, and tbe debt or obligation must be definitely pointed out by tbe debtor and an intention to discharge it in part made manifest. 34 A.J. 265.
Tbe subject is fully discussed by Walker, J., in Supply Co. v. Dowd, supra. And in Nance v. Hulin, 192 N.C. 665, Adams, J., after stating tbe abbreviated rule, says: “It is necessary tbat tbe payment be voluntary, tbat it be sucb as to imply in law tbat tbe debtor acknowledges tbe debt and distinctly promises to pay it; but a payment made under circumstances wbicb repel sucb implied promise will not stop tbe running of tbe statute. (Citing cases.)”
It may be tbat “recovery is usually determined by evidence, or agreement, and not by tbe plaintiff’s demand.” But bere plaintiff bas no evidence of any agreement other tban tbe one contained in tbe written contract. He bimself testified: “I bave not got anything where anybody bas agreed tbat any part of tbis (payment) should be credited on tbe real estate notes.” In my opinion there is not a single fact or circumstance tending to show tbat tbe payment was “voluntary” in tbe sense it was intended as a payment on these notes, or was made in acknowledgment of tbat debt, or from wbicb a promise to pay those notes may be implied. All tbe circumstances point in tbe other direction.
Plaintiff admits tbat tbe payment made to satisfy tbe first mortgage is not sufficient to toll tbe statute. Had tbe personal property been sold under order in tbe claim and delivery action and tbe proceeds credited on tbe real estate notes, tbis would not suffice. Tbat tbe amount was paid to save tbe personal property from sale does not, in my opinion, change tbis result.
I vote to affirm on both appeals.
