27 N.C. 663 | N.C. | 1845
Assumpsit, brought on 23 May, 1843, upon a promise of the testator of the defendants to collect certain debts due the plaintiff and pay over the money to the plaintiff or his order, and for money had and received. The pleas were the general issue, payment and the statute of limitations.
Upon the trial the plaintiff gave in evidence a receipt, dated 11 March, 1826, from the testator to the plaintiff, for upwards of forty small debts, due by bonds, notes, and accounts from sundry persons to the plaintiff, which the testator promised to collect and pay over to the plaintiff. The debts are of various amounts, from the sum of $50 down to 25 cents. The receipt is set forth at large in the (664) case sent up; and at the foot of it is a receipt given by plaintiff in the following words:
30 October, 1828. Then received of the within inventory, thirty-one dollars. IMRI SPRUILL.
The plaintiff proved by witnesses that nearly all the debtors were good for debts, and that the testator collected some of them soon after he had them, and might have collected the others. He also produced witnesses who deposed that the plaintiff was the son of the testator, and that, soon after the death of the latter in 1841, the plaintiff went to the house of the defendant, Amelia, who was the widow of the testator, and has since intermarried with the other defendant, and demanded of her a settlement of the receipt, and that she replied that she knew nothing of such a paper and was not prepared to settle it; but requested the plaintiff to leave it with Mr. Halsey, a gentleman in the neighborhood, to whose house she was going in a few days, and that she would then attend to it or settle it; but which of these two expressions she used the witnesses could not say. Another witness deposed that the defendant said she did not believe her husband owed the plaintiff anything, and that she would see Mr. Halsey respecting it.
The court instructed the jury that the statute of limitations did not bar, because the plaintiff had no right of action until a demand, and there was no demand in this case until 1841, and the suit was brought within three years thereafter. And the court further informed the jury that, although a case of this kind is not embraced in the statute fixing the time in which presumption of payment shall be made in certain cases, yet the court could not but think that a presumption of payment should arise from a long delay of a principal to call on his agent, and that the law would, for that purpose, fix upon ten years, in analogy to the time mentioned in the statute; that, after the lapse of ten years, *462 the law presumed the claim settled unless the plaintiff showed the contrary by an acknowledgement of the party or otherwise; and that if the jury thought the defendant Amelia meant to admit the justice (665) of the claim and promised to pay it, the plaintiff would be entitled to recover; but if she only meant that she would consult Mr. Halsey, and promised to pay in case he should advise her it was a just claim, it would not rebut the presumption. The jury found that the demand had been paid by the testator, and from the judgment the plaintiff appealed. There seems to be so strong a probability that the verdict is according to the justice of the case, and indeed, the law also, that the court has been very reluctant to award a venire de novo. But, upon consideration, we believe we are obliged to do so.
Throughout the directions to the jury his Honor assumed that there had been no demand by the plaintiff on his father for the payment of the money received by the latter, or for a return of the evidences of debt; and, therefore, that the father bore towards the plaintiff the relation of receiver or bailiff up to his death. For that reason he held that the statute of limitations did not bar the action; and, if the assumption of fact be well founded, we concur in the position of law. For it was the duty of the agent not only to receive the money for his principal, but also to hold it for him until demanded; and therefore there could be no action against him until demand. Now, it seems to us that for precisely the same reasons no presumption of payment could arise; that is, upon the supposition made that there had been no demand before 1841, and that the relation of principal and agent continued to the death of the father. For the act of 1826 only follows the phraseology of the acts of limitation, and of the rule of the common law that the time on which the presumption is founded, is computed after the right of action accrued. When, therefore, the jury was told that a long delay of a principal to call on his agent raised a presumption of payment, and that ten years would, in this case, be long enough for that purpose, in analogy to the time fixed by the statute, (666) we conceive, that his Honor confounded two things that are entirely distinct in themselves — the presumption raised by the law, as a positive rule, from the mere lapse of a certain time, and the presumption of actual payment deduced by the jury from lapse of time, as a circumstance, with or without others, from which they conclude that satisfaction had in fact been made. There is, indeed no occasion *463
for the act creating a presumption of payment of a simple contract since the ordinary act of limitations bars in a shorter time. Nevertheless, the act of 1826 is in terms sufficient to embrace simple contracts, as well as specialities — being "all judgments, contracts, and agreements"; and, perhaps, it may have been so drawn for the benefit of those who would not be willing to plead the statute of limitations, but would rely on the legal presumption against a stale demand. But, although this be within the act in respect of the nature of the contract, yet it is not within it in respect to the state of things on which the presumption is founded; for the debtor here, it is assumed, had no cause of action until 1841, and, therefore there could be no presumption against him in analogy to that of the statute. Bank v. Locke,
PER CURIAM. Venire de novo. *464
(668)