Smith v. . Leeper , 32 N.C. 86 ( 1849 )

To repel the statute of limitations a promise to pay must be proven — either express or implied. The law will always imply a promise when there is an acknowledgment (88) of a subsisting debt, unless there be something to rebut the implication. If one pays a debt in part, the law implies a promise to pay the balance, in the absence of any circumstance to negative such a promise.

This being the general rule, the question is whether there was evidence to bring this case within its operation. The judge below thought there was not. We have come to a different conclusion.

A copy of the account was shown to the defendant and she was requested to settle it. She said "she had no money, but would call in a few days and settle it with the old man. She did not intend to cut him out of it." The defendant had a direct reference to the account, which was drawn off and handed to her; and although, at the first conversation, there was some objection made to the price of one item, we think there was an explicit acknowledgment of a subsisting debt, from which a promise to pay will be implied, if, indeed, there was not evidence of an express promise, having sufficient certainty to support an action, by aid of the maxim, "id certumest, quod certum reddi potest."

The direct reference to the stated account distinguishes this fromPeebles v. Mason, 13 N.C. 367, and brings it within the rule laid down in that case.

PER CURIAM. Judgment of nonsuit set aside, and venire de novo.

Cited: Arey v. Stephenson, 33 N.C. 87; Moore v. Hyman, 35 N.C. 273;Shaw v. Allen, 44 N.C. 59; McBride v. Gray, ib., 421; McRae v. Leary,46 N.C. 93; Hussey v. Burgwyn, 51 N.C. 386; Vass v. Conrad, 52 N.C. 89;Kirby v. Mills, 78 N.C. 125; Hewlett v. Schenck, 82 N.C. 236; Long v.Oxford, 104 N.C. 409; Cecil v. Henderson, 121 N.C. 246; Supply Co. v.Dowd, 146 N.C. 195.

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