An agent of the plaintiff having with him several notes of the defendant, demanded payment, but did not exhibit the notes or any account, to which defendant replied that "he had claims against the plaintiff, and would see L. (plaintiff) and settle." Another agent for plaintiff presented the notes and an account together, and stated the amount of the whole, but did not state the amount of the account separately; to whom defendant replied, "he would call and settle or attend to it." Neither of these coloquies, nor both together amount to the recognition of any certain debt, so as to take the account out of the operation of the statute of limitations.
The only question was, whether there had been a sufficient new promise to take the case out of the statute. The evidence upon this point was, that after the account sued on had been barred by the lapse of time, one Hill, as agent of the plaintiff, applied to defendant for payment, who replied that "he had claims against the plaintiff, and that he would see Loftin and settle." This witness further stated that he did not present any account, but had certain notes with him which defendant owed the plaintiff. Another witness, one Rountree, stated that he presented the account in question to the defendant with certain notes due by defendant to plaintiff; that he did not tell him the amount of the account, but he did tell him the total amount of both; that the defendant did not examine the account, but said "he would call down the next Saturday at plaintiff's store and settle or attend to it."
The Court instructed the jury, that upon this evidence the plaintiff was entitled to recover.
Verdict for the plaintiff. Judgment and appeal.
BATTLE, J.
The case of Shaw v. Allen, Busb. Rep. 58, is very much like the present, and is decisive of it. The testimony of neither of the witnesses shows the acknowledgment of any certain debt from which a promise to pay it can be implied, nor does it furnish any data from which the acknowledgment and consequent promise to pay any certain debt can be deduced. Each of the witnesses states that he had notes as well as the account in question, in favor of the plaintiff against the defendant, and that the latter did not examine the account, nor was he told what was its amount. His reply to the demand for the payment of the notes and account together was, to the first witness, that he had claims against the plaintiff, and he would see him and settle; and to the second witness, that he would call at the plaintiff's store and settle or attend to it. Settle what? The notes or account? It may be assumed that he meant either or both. If it be taken that he meant either the notes or account, then of course, it is left altogether uncertain which he meant, and there cannot be implied a promise on his part to pay the account as a certain debt. If it be taken that he meant both notes and account, then it does not appear that he knew what the account was, for he neither examined it, nor was informed of its contents, nor even of its amount. His attention was not called to the account as a claim separate and distinct from the notes, and the law will not entrap him into an acknowledgment of it, and thence imply a promise to pay it, from his reply that he would call and settle, or attend to it. The defendant had said to the plaintiff's first agent that he had claims against the plaintiff, and his response to the second shows that he was not willing to pay even the notes without further enquiry, and a credit for his counter claim. It would be going much too far to say that he admitted the correctness of a stale account which does not appear to have been exhibited to him, and of the amount of which he was not informed. We are unwilling to relax in the slightest degree the salutary principle established by all the later decisions of this Court, that "to repel the statute of limitations, there must be a promise to pay the debt sued on, either expressed or implied, and the terms used" (must be certain of themselves or) "must have sufficient certainty to give a distinct cause of action, by the aid of the maxim, id certum est quod certum reddi potest."
PER CURIAM. The judgment is reversed and a venire de novo awarded.
Comments