Rouss v. . Ditmore

*778 Faircloth, O. J.: This action was commenced in 1895 for balance due on an account for goods sold and delivered in 1889. Defendant gave a mortgage to secure the account on real estate. He plead payment and statute of limitations. Plaintiff alleges in his amended complaint that defendant, with a fraudulent intent, represented that the real estate mortgaged was worth $1,500 whereas in fact it was not worth more than $50. Upon these facts his Honor held that the action was barred and proceeded no further. Non-suit and appeal. The Act of 1889, Chapter 269, amends The Code, Section 155(9), and subjects all actions to the same rule whether heretofore cognizable solely in a court of equity or not. Alpha Mills v. Engine Company, 116 N. C., 797. That action was for damages on a false warranty. The present action is not for damages for any fraudulent conduct on the part of the defendant, but is for the balance due on an account for goods sold. The amended complaint is only a reply to an effective defence pleaded, and is not the cause of action alleged in the original declaration. At common law there was no time limited to bring an action. In the course of events, the courts of equity, being impressed with the inconvenience and frequent injustice of enforcing stale demands, adopted certain periods of time after which they would presume payment or satisfaction in some way. The courts of law, in analogy, enacted statutes of limitations, and also observed the rule of presumptions, which had been introduced by the courts of equity. Accordingly the Statute, James I, superseded all previous attempts at limitations on actions, and that statute is still in force in England and in most of the States in the United States, with such modifications as to length of time, etc., as the States have- desired. Statutes of limitations act merely *779 upon the remedy, but do not extinguish or discharge the claim. They destroy the remedy unless it is enforced within the specified period, and the bar is not removed by anything less than a new promise or some acknowl-edgement or act consistent with such promise, whereas a presumption is overcome by sufficient proof that the debt has not been paid, or satisfactory circumstances to account for the delay of the creditor in failing to prosecute his claim. If the plaintiff had alleged as his cause of action the alleged and concealed fraud, then the time of its discovery would probably have availed him, if within the statutory period. He seems to have relied on the integrity of his debtor. If there was no fraud, the remedy was barred. If there was fraud, the remedy, after it was discovered, was damages therefor, and was plaintiff’s cause of action instead of the balance on his account, which was barred b}7 time. We find no error in the record. Affirmed.