George W. Helm Co. v. Griffin

16 S.E. 1023, 112 N.C. 356

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

Olab.Iv, J.:

Under the former statute of presumptions an acknowledgment of the non-payment of a debt coming within its operation would rebut the presumption of payment arising from the lapse of time. But now we have no statute of presumptions. The Code, §138, prescribes a statute of limitations only. The acknowledgment which is now requisite as evidence of a new or continuing contract must not only be in writing (The Code, §172), but it must be an' unconditional promise to pay the debt. Bates v. Herren, 95 N. C., 388; Greenleaf v. Railroad, 91 N. C., 33. A mere acknowledgment of the debt, though implying a promise to pay it, will not revive it. Riggs v. Roberts, 85 N. C., 151; Faison v. Bowden, 76 N. C., 425. This section (172) provides that the statute is only waived by an acknowledgment or new promise, which amounts to “anew or continuing contract.”

The letter here relied on contains no promise whatever, neither express nor implied, conditional nor unconditional. It is in no sense a contract. At the most, it is a mere acknowledgment of the indebtedness, which had become barred, but without any promise to pay it. The bar of the statute is, therefore, not removed.

Per CuriaM. No Error.