Grady v. . Wilson , 115 N.C. 344 ( 1894 )

The allegation of the complaint is that the plaintiff's intestate rendered services during the years 1881, 1882, 1883 and 1884 as a servant for defendant's intestate, who promised time and again to pay for them. The complaint further alleges the reasonable value of said services, so as to recover upon a quantum meruit. The answer alleges full payment of said services, and says that if defendant's intestate promised any additional compensation, or any compensation, it "was in parol and more than three years had elapsed since the making of such promise, and the defendant specially pleads the statute of limitations upon such promise." The statute was sufficiently pleaded, whether the action is on the express promise or the implied promise. Stokes v.Taylor, 104 N.C. 394; Fulps v. Mock, 108 N.C. 601; Stubbs v. Motz, 113, N.C. 458. This is not a case where the alleged promise is to pay out of the estate after death. Here the statute began to run for each year's services at the end of the year. The statute began to run for the last year's services on 1 January, 1885, and three years had elapsed before the death of either plaintiff's intestate or of defendant's intestate. The Code, section 164, has therefore no application. The claim as to 1881 and 1882 was already barred upon the defendant's intestate becoming insane in 1886. As to the claim for 1883 and 1884, the statute, having begun to run, was not suspended by the supervening insanity. Chancey v. Powell, 103 N.C. 159. Action should have been (348) brought within three years against the employer, or, after the insanity, against his guardian. The debt could have been established by judgment, even if the allegation was correct that it could not have been collected till after the ward's death on account of the income being required for his support. The claim being barred before the death of defendant's intestate, and there being neither proof nor allegation of a new promise in writing (The Code, sec. 172) by the defendant, it is not necessary to consider the question which that would have raised.Fleming v. Fleming, 85 N.C. 127. The reply of the administrator to the plaintiff that it was not necessary to get a lawyer and that he "would see the judge and do whatever he said," was not conduct which waived the statute and justified the plaintiff in not bringing action. Hill v.Hilliard, 103 N.C. 34; Joyner v. Massey, 97 N.C. 148. Besides, the claim was already barred, and the plaintiff was not prejudiced by the delay.

Error.

Cited: Duckworth v. Duckworth, 144 N.C. 622.