Hussey v. . Kirkman

Smith, C. J., (after stating the facts). It will be perceived, that while the plaintiff was allowed to testify to the handwriting of the defendant’s intestate in the signature and seal in the note, under the ruling in Peebles v. Maxwell, 64 N C., 313, and in Rush v. Steed, 91 N. C., 226, yet he was not permitted to '■'speak of the contents of the instrument, by reason of the interdict of The Code, §590, because it was -written by the intestate. The giving of the note in its entirety was, undoubtedly, a transaction between the plaintiff and intestate, as much the signing and sealing as any other part of it, and of this, the witness had the same personal knowledge. Indeed, it was a consummation from which the vitality of the contract is derived. Had *66 it been present, this proof would have entitled the plaintiff to have it read to the jury, and, if not controverted, to a verdict upon it. If the ruling in Peebles v. Maxwell is to be followed, and it was followed with evident reluctance, as a precedent for the similar ruling in the other case, involving, in the opinion of the Court, “a very fine spun distinction,” it would seem not very unreasonable to permit to be shown the contents, of the instruments, upon the same kind of testimony as is allowed to prove the execution. This might rest upon the memory of the witness, from reading the note with the recognized signature, and apart from his personal knowledge of the making, just as he testified to handwriting, from his general knowledge, irrespective of his seeing the signing. But if any error was committed in excluding proof of the provisions of the note, after proof of execution, it would lie rather in the admission of the testimony, to show execution, than in the exclusion of testimony of the terms of the executed instrument. The latter ruling is clearly not erroneous, and the other, in the plaintiff’s favor, supplies him with no just grounds of complaint. Upon the received evidence, it does not appear when the note was made, nor when it matured; and when the statutory bar is set up, it devolves on the plaintiff', to show that the cause of action accrued within the time limited for bringing it. If the note was made previous to the time when the Code of Civil Procedure went into effect, there would be no limited time for instituting suit, but only a presumption of payment raised by the lapse of time. If made and maturing on or after April 8th, 1874, the limitation in the present law would not have expired before the issue of the summons. The Code, §132, par. 2. If it was executed and became due within the interval thus marked, the statutory bar would protect the intestate. The plaintiff did not show when the note was given, and when the cause of action accrued. *67 To meet this difficulty, we suppose the intestate’s admissions of his indebtedness, were given in evidence, and the inquiry is, were they sufficient to remove the bar. The admission is, that the intestate owed a note to the plaintiff of about sixty dollars, which had been renewed. The trouble is, that no note has been produced, nor its contents shown, to which the admissions can be attached, so as to ■admit of identification. The acknowledgment is very like that in Faison v. Bowden, 72 N. C., 405, in which the testator said to the plaintiff, “I can’t pay you what I owe you, but I will pay you soon, or next winter. I need what money I have now for building, and it will do you more good to get it in a lump.” The testator owed the plaintiff for medical services, running over a period from the beginning of 1854 to his death, in November, 1861, and the recognition of the debt was relied on to remove the bar as to the whole account. It was held to be insufficient, and Reade, J., for the Court, says: “The rule to be gathered from the numerous cases, to which we were referred by the counsel, may be thus expressed: The new promise must be definite and show the nature and amount of the debt, or must distinctly refer to some writing, or to some other means by which the amount and nature of it can be ascertained; or there must be an acknowledgment of a present subsisting debt, equally definite and certain, from which a promise to pay such debt may be implied.” Again, it has been held, that the promise must be made- to the creditor himself, (Parker v. Shuford, 76 N. C., 219, and Faison v. Bowden, Ib., 425), or to an attorney or agent for the creditor, (Kirby v. Mills, 78 N. C., 124), to repel the statute. If, however, the note was executed since the Code of Civil Procedure became the law, (and the time is not shown), the promise or acknowledgment must beiin writing (The Code, §172), and if before, there is no statutory limitation applicable. *68 The ruling of the Court, that there was no evidence before the-jury to warrant a verdict for the plaintiff, must therefore be sustained. No error. Affirmed.