Cecil v. . Henderson , 121 N.C. 244 ( 1897 )

This is an action on a sealed note executed by Loftin as the principal and the defendant as the surety, commenced on 1 August, 1895. The note is dated 15 September, 1888, on which the last payment was made 2 November, 1891. The court submitted these issues:

1. "Was the plaintiff induced to delay suit on the note at the special request of defendant for the accommodation and upon the promise of the defendant to pay the same and that he would not avail himself of the statute of limitations?" The jury answered, "Yes."

2. "Was said request and promise made in 1893, as alleged?" The answer was "Yes."

The defendant tendered this issue, "Is the plaintiff's action barred by the statute of limitations?" which was not submitted, and the defendant excepted. There is no plea of payment; on the contrary, the answer admits that nothing has been paid except all interest to 2 November, 1891. The issue tendered by defendant was unnecessary, and (246) its refusal was not error, because the facts show and the issues submitted assume that the right of action was barred, unless it was saved by the request and promise made in 1893, as found by the jury, about which there was conflicting evidence. It is only necessary to submit such issues as arise out of the pleadings material to be tried (Code, sec. 395), such as will admit all material evidence upon the whole matter in controversy. Albright v. Mitchell, 70 N.C. 445; Tucker v. Satterthwaite,120 N.C. 118.

To repel the statute of limitations, there must be proof of a promise to pay, and when there is an acknowledgment of subsisting debt the law implies a promise to pay, unless there is something to rebut the implication. McRaev. Leary, 46 N.C. 91; Smith v. Leeper, 32 N.C. 86. Where the action is upon the original promise, as it must be, the new promise repels the effect of the statute in "actions on promise," and either revives the first or is evidence of similar continued promises from the time of the original contract. The liability of the promisor, according to the tenor of the instrument, is the consideration for the new promise, which must be betweenthe two parties to do the same thing, as a promise to a former holder or a third party would not repel the statute. In a certain class of promises the action must rest upon the new promise, as if the new agreement was to deliver a horse to satisfy an old debt, or if the debt was due the testator and the new promise is made to his executor. Thompson v. Gilreath,48 N.C. 493; McRae v. Leary, supra. In McCurry v. McKesson, 49 N.C. 510, the new promise was "that he would settle and make all right":Held, that repelled the statute.

Such are the rules at law established by this Court; but the court, in the exercise of its equitable jurisdiction, held that when suit was delayed (247) and induced by the request of the debtor, expressing or implying his engagement not to plead the lapse of time in bar of the action, he would not be allowed to set it up as a defense, because it was an unconscientious defense and against equity. This is easily so in a system where the distinction between actions at law and suits in equity and the forms are abolished and only one form is allowed, as it is with us. Danielv. Comrs., 74 N.C. 494; Haymore v. Comrs., 85 N.C. 268. The Code, sec. 172, introduced another requisite in order to avoid the statute of limitations, viz.: that no acknowledgment or promise shall be received as evidence of a new or continuing contract . . . unless the same be contained in some writing signed by the party to be charged thereby.

In the case before us neither the request for delay nor the acknowledgment, nor the promise to pay, and that defendant would not avail himself of the statute of limitations, was in writing, signed by the defendant. In considering that section of the Code this Court held, in the exercise of its equitable jurisdiction, that a plea of the statute of limitations would not be allowed as a defense when it would be unconscientious and inequitable and would perpetrate a fraud on the creditor in the face of such promise, although they were not in writing.Joyner v. Massey, 97 N.C. 148; Hill v. Hilliard, 103 N.C. 34; Wood on Limitations (2d Ed.), 228, sec. 76. Under the issues submitted, the defendant was at liberty to make any defense which could avail him on the trial of the matter in controversy, and the issue tendered by him was unnecessary.

Affirmed.