Nance v. . Hulin

Adams, J. Tbe liability of tbe defendants was that of endorsers' and as against them tbe plaintiff’s cause of action was barred by tbe three-year statute of limitations. C. S., 441, 3044; Houser v. Fayssoux, 168 N. C., 1; Bank v. Wilson, ibid., 557; Dillard v. Mercantile Co., 190 N. C., 225. Tbe statute of limitations began to run at tbe maturity of tbe note — 1 November, 1922. Triplett v. Foster, 115 N. C., 335. Tbe action was brought on 16 December, 1925, and is barred unless tbe alleged payments arrested tbe running of tbe statute. Tbe trial judge instructed tbe jury that if tbe two payments were credited on tbe note “by virtue of sales of goods embraced in tbe chattel mortgage assigned to tbe plaintiff as security with tbe knowledge and consent of tbe defendants tbe credits would stop tbe running of tbe statute and it would run anew from that date.” C. S., 416. This instruction, we think, is subject to exception. In Battle v. Battle, 116 N. C., 161, it is said that tbe effect of a partial payment is not *666 of statutory origin, but is an exception conceded by tbe courts, and tbat sucb effect is allowed only when tbe payment is made under such circumstances as will warrant tbe clear inference tbat tbe debtor recognizes tbe debt and bis obligation to pay tbe remainder due. It is necessary tbat tbe payment be voluntary, tbat it be sucb as to imply in law tbat tbe debtor acknowledges tbe debt and distinctly promises to pay it; but a payment made under circumstances wbicb repel sucb implied promise will not stop tbe running of tbe statute. Hewlett v. Schenck, 82 N. C., 234; Supply Co. v. Dowd, 146 N. C., 191; Kilpatrick v. Kilpatrick, 187 N. C., 520. In Bank v. King, 164 N. C., 303, tbe defendants executed tbeir note to tbe plaintiff, a bank, and authorized tbe casbier to sell certain collateral securities and to apply tbe proceeds to tbe payment of tbe note. On tbe theory tbat the debtors bad appointed tbe casbier tbeir agent to sell tbe securities and to apply tbe proceeds, and bad agreed to remain liable to tbe bolder of tbe note for any deficiency, it was held tbat sucb sale and payment repelled tbe bar of tbe statute. Tbe facts are distinguishable from those in tbe present appeal. It is true tbat tbe plaintiff seized tbe mortgaged property, or a part of it, at tbe suggestion of tbe defendants and requested J. A. Hulin to attend tbe sale and “protect bis interest by bidding on tbe crops”; but Hulin’s purchase of tbe corn and potatoes did not necessarily imply an acknowledgment of bis liability or bis voluntary payment as an endorser, and tbe mere entry of tbe two payments as credits on tbe note “with tbe knowledge and consent of tbe defendants” would not of itself arrest tbe running of tbe statute. With or without tbe consent of tbe defendants, it was tbe duty of tbe endorsee to credit tbe payments. Tbe element of tbe intent of tbe parties seems not to have been considered. Tbe error complained of entitles tbe defendants to a New trial.