Citation Numbers: 1 S.E. 702, 97 N.C. 148
Judges: DAVIS, J., after stating the facts:
Filed Date: 2/5/1887
Status: Precedential
Modified Date: 1/13/2023
(Knight v. Braswell,
"With interest from date, at 8 per cent, we, or either of us, promise to pay Turner Joyner the sum of two hundred and thirteen dollars and twenty-five cents, for value received. 28 October, 1874.
(Signed) MARTHA EGERTON. [Seal.] (Signed) WILLIAM MASSEY. [Seal.]"
And that no part of said note had been paid.
The defendant's answer admitted the execution of the note, but insisted that he had signed it as surety, and relied upon the statute of limitation.
The plaintiff replied, admitting that the defendant had signed the note as surety, but alleging that action had been delayed by the plaintiff at the special request of the defendant, for his accommodation, and upon his express promise to pay the same. The summons was issued 16 August, 1883.
Issues were submitted to the jury, who found: (1) That suit upon the bond was delayed by the plaintiff at the special request of the defendant for his accommodation, and upon his express promise to pay the same; and (2) That the request and promise were made in May, 1877.
Upon the verdict, the defendant moved for judgment, upon the ground that more than three years had expired after May, 1877, and after the note became due, before this action was commenced. (150) This was refused and judgment rendered for the plaintiff, and the defendant appealed.
It is admitted by the plaintiff that the defendant signed the note as surety. It is well settled by statute and by decision, that three years is a bar to an action against a surety to a note, although under seal. Knightv. Braswell,
The only question for our consideration is, did the defendant's request for delay, and his promise to pay, remove the bar of statute? If the action had been brought within three years after this request and promise, the statute would not equitably have barred; though in Shapley v. Abbott,
In Haymore v. Commissioners of Yadkin,
In Barcroft v. Roberts,
So in the case of Daniel v. Commissioners of Edgecombe,
Conceding that these authorities, relied on by plaintiff's counsel, sustain fully the position that when the delay is induced by the request of the defendant and his promise to pay without relying upon the statute of limitation, the court will not allow the statute to bar, because it would be against equity and good conscience, we think the action should be brought within a reasonable time, and that equity should follow the law and give no greater effect to such promise than to a new promise made in writing, or to an original promise supported by a good consideration, or to a payment made on a note, which the statute fixes at three years. It does not destroy the defendant's relation as surety, and if the action is not brought within three years after such request for delay, and promise not to rely on the statute, it should be barred in equity as well as at law.
In the cases relied on by the plaintiff, the actions were brought within three years after the promises inducing the delay. In the case of Burton v.Stevens, 58 American Decisions, 153, cited by counsel for plaintiff, there was an endorsement in writing on the back of the notes, to the effect that the maker would "not take any advantage of the statute of limitation on the within two notes." This was held, very properly, to take the case out of the statute, but the action was commenced within the statutory limit, after the endorsement was made; and this case is not an authority against the defendant.
This view will give full effect to the equitable doctrine which will not allow a defendant to take undue advantage of delay induced by his own promises on the one side, and is in harmony with the statute on the other, which fixes the limitation at three years. In this action it was found that the request and promise were made in May, 1877, and the action was brought 16 August; 1883.
There is error. Judgment reversed. (153) *Page 134
Welfare v. . Thompson , 83 N.C. 276 ( 1880 )
Haymore v. . Commissioners , 85 N.C. 268 ( 1881 )
State Loan Etc. Co. v. Cochran , 130 Cal. 245 ( 1900 )
Dibbrell v. . Insurance Co. , 110 N.C. 193 ( 1892 )
Hill v. . Hilliard , 103 N.C. 34 ( 1889 )
Cecil v. . Henderson , 121 N.C. 244 ( 1897 )
Davidson v. . Arledge , 97 N.C. 172 ( 1887 )
Grady v. . Wilson , 115 N.C. 344 ( 1894 )