Kull v. . Farmer

Although there are conflicting decisions elsewhere, it is a well settled doctrine in this State that the legal effect of a new promise relied on to remove the bar of the statute of limitations is to put that impediment out of the way and revive the original cause of action. Hence it is held that a new promise made after the commencement of suit is sufficient to repel the statute, and enables the plaintiff to recover.Falls v. Sherrill, 19 N.C. 371. It is otherwise where a promise is made to pay a debt discharged under the bankrupt act. In this the promise itself becomes or may become the cause of action and the unpaid prior legal obligation, notwithstanding the discharge, is a sufficient consideration to support it.

Where the cause of action has accrued since the adoption of the Code of Civil Procedure, and is barred by lapse of time, the new promise, to have any efficacy, must be in writing. C. C. P., sec. 51. If the plaintiffs had declared on the first promise and relied on the last, as evidence to remove the statutory bar, the provision of The Code would apply and they would fail. But the plaintiffs rely on the last promise as constituting the foundation of their right to recover, and this was within three years next before the issuing of the summons. We see no reason why this cannot be done, nor why a consideration sufficient to sustain the one is not also sufficient to sustain the other promise; nor can we understand how upon any legal principle a complete and full remedy existing independently can be lost or impaired by proof of an unfulfilled prior promise to pay the debt, which if declared on would be barred (341) by the lapse of time. We deem it only necessary to refer to two cases. Hornthall v. McRae, 67 N.C. 21; Fraley v. Kelly, ibid., 78.

PER CURIAM. No error.

Cited: Menzel v. Hinton, 132 N.C. 662.

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