{
  "id": 8523473,
  "name": "AMERICAN MULTIMEDIA, INC., Plaintiff v. FREEDOM DISTRIBUTING, INC., Defendant",
  "name_abbreviation": "American Multimedia, Inc. v. Freedom Distributing, Inc.",
  "decision_date": "1989-10-03",
  "docket_number": "No. 8915SC78",
  "first_page": "750",
  "last_page": "753",
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    "name": "North Carolina Court of Appeals"
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    {
      "cite": "113 S.E.2d 323",
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      "year": 1960,
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          "page": "327",
          "parenthetical": "partial payments made by defendant on six notes owned by plaintiff started the statute of limitations running anew from the date of each payment"
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      "cite": "252 N.C. 200",
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      "cite": "87 N.C. 404",
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      "cite": "72 N.C. 405",
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          "page": "407"
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      "cite": "38 S.E. 28",
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      "reporter": "S.E.",
      "year": 1901,
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          "parenthetical": "A writing stating \"I am going to pay it as soon as I can\" was conditioned upon ability to pay and was insufficient to toll the statute of limitations."
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      "cite": "128 N.C. 40",
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      "year": 1901,
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          "parenthetical": "A writing stating \"I am going to pay it as soon as I can\" was conditioned upon ability to pay and was insufficient to toll the statute of limitations."
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      "cite": "169 S.E. 634",
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      "cite": "204 N.C. 695",
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      "cite": "175 S.E.2d 836",
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      "year": 1934,
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      "cite": "207 N.C. 6",
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    {
      "cite": "291 S.E.2d 336",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "pin_cites": [
        {
          "page": "339",
          "parenthetical": "\"the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court\" quoting, Weil v. Herring, 207 N.C. 6, 10, 175 S.E.2d 836, 838 (1934)"
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      "cite": "57 N.C. App. 249",
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      "year": 1982,
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          "page": "252",
          "parenthetical": "\"the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court\" quoting, Weil v. Herring, 207 N.C. 6, 10, 175 S.E.2d 836, 838 (1934)"
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      "year": 1987,
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      "cite": "320 N.C. 166",
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      "cite": "85 N.C. App. 138",
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  "last_updated": "2023-07-14T18:25:49.576177+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge HEDRICK and Judge ORR concur."
    ],
    "parties": [
      "AMERICAN MULTIMEDIA, INC., Plaintiff v. FREEDOM DISTRIBUTING, INC., Defendant"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nPlaintiff argues that the trial court erred in dismissing its complaint on the grounds that the statute of limitations had run. The statute of limitations for breach of contract actions in North Carolina is three years. G.S. 1A-1-52. Plaintiff raises for the first time in its brief the applicability of the four-year statute of limitations afforded under Article 2 of the North Carolina Uniform Commercial Code. G.S. 25-2-725. Since plaintiff failed to raise this issue on its motion to dismiss, this issue is not properly before us. Allred v. Tucci, 85 N.C. App. 138, 144, 354 S.E.2d 291, 295, disc. rev. denied, 320 N.C. 166, 358 S.E.2d 47 (1987). Tallent v. Blake, 57 N.C. App. 249, 252, 291 S.E.2d 336, 339 (1982) (\u201cthe law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court\u201d quoting, Weil v. Herring, 207 N.C. 6, 10, 175 S.E.2d 836, 838 (1934)). Therefore, we do not address the issue of whether reproduction of cassette tapes falls within the ambit of Article 2.\nApplying the three-year statute of limitations to this case, the pleadings reveal that the statute of limitations has run.\nPlaintiff contends that defendant\u2019s 14 December 1984 letter acted as an acknowledgment of the debt owed to plaintiff and thus served to toll the statute of limitations. G.S. 1-26 provides, \u201cno acknowledgment or promise is evidence of a new or continuing contract, from which the statutes of limitation ran, unless it is contained in some writing signed by the party to be charged thereby. . . .\u201d Case law construing this statute has made it clear that the promises must be in writing and must manifest a definite and unqualified intention to pay the debt in order for the writing to effectively toll the statute of limitations. Smith v. Gordon, 204 N.C. 695, 698, 169 S.E. 634, 635 (1933). The 14 December 1984 letter merely states that \u201cwe plan to pay\u201d and \u201cwe expect to pay\u201d the debt. These conditional expressions of defendant\u2019s willingness to pay the plaintiff are not sufficiently precise to amount to an unequivocal acknowledgment of the original amounts owed. See Cooper v. Jones, 128 N.C. 40, 38 S.E. 28 (1901) (A writing stating \u201cI am going to pay it as soon as I can\u201d was conditioned upon ability to pay and was insufficient to toll the statute of limitations.).\nIn Faison v. Bowden, 72 N.C. 405 (1875), the debtor told his creditor, \u201cI can\u2019t pay you what I owe you, but I will pay you soon, or next winter.\u201d Finding this to be insufficient to toll the statute of limitations, the court stated:\nThe 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 nature and amount 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.\nId. at 407. In the present case, the statements by defendant that \u201cwe plan to pay\u201d $15,000 every month up to June 1985 and \u201cwe expect to pay the balance\u201d fail to show the nature and amount of the debt and at best demonstrate a willingness to pay based on defendant\u2019s ability to make the monthly payments. This promise is insufficient to repel the statute of limitations.\nPartial payment, intended to acknowledge the underlying debt, will also toll the statute of limitations on the original cause of action. The plaintiff alternatively argues this was the effect of the 20 December 1984 payment. McDonald v. Dickson, 87 N.C. 404 (1882).\nHere, even if defendant\u2019s partial payment served to toll the three-year statute of limitations on the underlying debt, it began to run again from 20 December 1984. Pickett v. Rigsbee, 252 N.C. 200, 205, 113 S.E.2d 323, 327 (1960) (partial payments made by defendant on six notes owned by plaintiff started the statute of limitations running anew from the date of each payment). Since plaintiff\u2019s complaint was not filed until 27 January 1988, the statute of limitations had run on the action and plaintiff\u2019s claim is therefore barred.\nAffirmed.\nChief Judge HEDRICK and Judge ORR concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Mary K. Nicholson and Robert H. Hood, III for plaintiff-appellant.",
      "Casstevens, Hanner, Gunter & Gordon, P.A., by Marc R. Gordon, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "AMERICAN MULTIMEDIA, INC., Plaintiff v. FREEDOM DISTRIBUTING, INC., Defendant\nNo. 8915SC78\n(Filed 3 October 1989)\nLimitation of Actions \u00a7\u00a7 13, 14\u2014 contract to reproduce tapes \u2014 letter not acknowledgment of debt \u2014 statute not tolled \u2014 partial payment \u2014 action barred anyway\nIn an action to recover on a contract for the reproduction of cassette tapes, statements by defendant that \u201cwe plan to pay\u201d $15,000 every month up to June 1985 and \u201cwe expect to pay the balance\u201d failed to show the nature and amount of the debt, at best demonstrated a willingness to pay based on defendant\u2019s ability to make the monthly payments, and was insufficient to toll the statute of limitations; furthermore, even if defendant\u2019s partial payment of $10,000 on 20 December 1984 was sufficient to start the statute of limitations running anew, the statute had run by the time plaintiff\u2019s action was filed on 27 January 1988, and the action was therefore barred.\nAPPEAL by plaintiff from Allen (James B., JrJ, Judge. Order entered 24 September 1988 in Superior Court, ALAMANCE County. Heard in the Court of Appeals 11 September 1989.\nPlaintiff is in the business of reproducing cassette tapes. From January 1984 through June 1984 plaintiff produced approximately 200,000 cassette tapes for defendant which were not paid for.\nOn 18 June 1984 plaintiff refused to process any further orders for the defendant. Negotiations ensued, and on 30 October 1984 the parties signed an agreement whereby defendant was to pay plaintiff the sum of $172,068.14. On 14 December 1984 defendant sent plaintiff a letter, which read in pertinent part:\nWe are budgeting our payment schedule now and plan to pay you $15,000.00 this month and every month up to June of 1985 of which we expect to pay the balance. Please review this statement and if you should have any questions do not hesitate to call me.\nPayment of $10,000 was made on 20 December 1984 but no other payments were forthcoming.\nOn 27 January 1988, plaintiff filed its complaint for breach of contract. Defendant made a motion to dismiss pursuant to Rule 12(b)(6) on the grounds that the applicable statute of limitations had run on plaintiff\u2019s claim. Defendant\u2019s motion was granted and plaintiff appeals.\nMary K. Nicholson and Robert H. Hood, III for plaintiff-appellant.\nCasstevens, Hanner, Gunter & Gordon, P.A., by Marc R. Gordon, for defendant-appellee."
  },
  "file_name": "0750-01",
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}