Raby v. Stuman.

Supreme Court of North Carolina

Raby v. Stuman.

37 S.E. 476, 127 N.C. 463, 1900 N.C. LEXIS 108

CourtSupreme Court of North Carolina

DecidedDecember 22, 1900

StatusPublished

Cited by1 cases

This text of 37 S.E. 476 (Raby v. Stuman.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Raby v. Stuman., 37 S.E. 476, 127 N.C. 463, 1900 N.C. LEXIS 108 (N.C. 1900).

Pincite

Opinion

Eaikclotii, C. J.

The defendant bought land from plaintiff’s intestate, and received a deed. Defendant made his note, not under seal, payable to the intestate for $250, dated June 23, 1894, and added these words: “I agreeing, further, in the event I succeeded to sell the land, to pay E. Raby an additional fifty dollars.” The action was commenced September 2, 1899. Defendant pleaded the three-years statute -of limitation. The defendant told the plaintiff before the statute became a bar that he had optioned the land to a mining company, and as soon as the trade went through the debt would be paid, and at another time promised to pay the same. The last option expired on June 6, 1896. The Court was of opinion that the $250 was barred by the statute, and judg-ment was entered accordingly.

*464 The promise to pay, not being in writing, can not be received as evidence of a new, or continuing contract, to defeat the operation of the statute. Code, sec. 172. The defendant is not estopped to plead the statute, as his promise was not an agreement not to plead it, as it was in Haymore v. Commissioners, 85 N. C., 268. A request not to sue will not stay the statute, it must be an agreement not to plead it. Hill v. Hilliard, 103 N. C., 34. Plaintiff can not recover the. $50, as there is no evidence that any option “went through.” We can find no error in law, and we can not deal with the morality of the matter.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Eaikclotii, C. J.

The defendant bought land from plaintiff’s intestate, and received a deed. Defendant made his note, not under seal, payable to the intestate for $250, dated June 23, 1894, and added these words: “I agreeing, further, in the event I succeeded to sell the land, to pay E. Raby an additional fifty dollars.” The action was commenced September 2, 1899. Defendant pleaded the three-years statute -of limitation. The defendant told the plaintiff before the statute became a bar that he had optioned the land to a mining company, and as soon as the trade went through the debt would be paid, and at another time promised to pay the same. The last option expired on June 6, 1896. The Court was of opinion that the $250 was barred by the statute, and judg-ment was entered accordingly.

*464 The promise to pay, not being in writing, can not be received as evidence of a new, or continuing contract, to defeat the operation of the statute. Code, sec. 172. The defendant is not estopped to plead the statute, as his promise was not an agreement not to plead it, as it was in Haymore v. Commissioners, 85 N. C., 268. A request not to sue will not stay the statute, it must be an agreement not to plead it. Hill v. Hilliard, 103 N. C., 34. Plaintiff can not recover the. $50, as there is no evidence that any option “went through.” We can find no error in law, and we can not deal with the morality of the matter.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

37 S.E. 476, 127 N.C. 463, 1900 N.C. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raby-v-stuman-nc-1900.

Opinion

Related

Cite This Page — Counsel Stack