Bryant v. . Kellum

182 S.E. 709, 209 N.C. 112, 1935 N.C. LEXIS 40

• Court: Supreme Court of North Carolina
• Decided: December 11, 1935
• Status: Published

Opinion

Per Curiam.

The statute of limitations having been pleaded, the burden of proof was on the plaintiff to show that his action was brought within the time allowed by the statute. O. S., sec. 416, provides that: “No acknowledgment or promise is evidence of a new or continuing contract, from which the statutes of limitations run, unless it is contained in some writing signed by the party to be charged thereby; but this section does not alter the effect of any payment of principal or interest.” The last clause of this section has been construed bydhis Court in numerous cases, wherein it has been uniformly held that a partial payment to have the effect to prevent’the bar of the statute of limitations must be made under such circumstances as will warrant the clear inference that the debtor recognizes the debt as then existing and his willingness, or, at least, Ms obligation to pay tbe balance. Piano Co. v. Loven, 207 N. C., 96; Nance v. Hulin, 192 N. C., 665; Battle v. Battle, 116 N. C., 161.

Tbe evidence offered in tbe case at bar does not bring it within tbe rale laid down. Tbe judgment of nonsuit is

Affirmed.