{
  "id": 8653131,
  "name": "JOHN C. TAYLOR v. P. A. MILLER",
  "name_abbreviation": "Taylor v. Miller",
  "decision_date": "1893-09",
  "docket_number": "",
  "first_page": "340",
  "last_page": "343",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T19:27:11.999452+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "JOHN C. TAYLOR v. P. A. MILLER."
    ],
    "opinions": [
      {
        "text": "MacRae, J.:\nThe action was upon a note for $400 and interest, dated March 29, 1886, payable one day after date, and made by defendant to plaintiff. The only plea was that of the statute of limitations, and the same was good unless there had been a new acknowledgment or promise in writing, under section 172 of The Code.\nThe case turns upon the testimony of E. L. Gaither and a letter referred to therein, which witness testified that he had received from the defendant. That portion of his testimony which is material is as follows:\n\u201cThat on or about the first of November, 1891, the plaintiff put this note into witness\u2019s hands for'collection; that witness had this note and one other note against the defendant; that on the 4th of November, 1891, witness wrote to defendant a note, a copy of which is\u2014\n\u201c\u2018Dear Sir \u2014 Mr. John C. Taylor had your note for $400, principal. He says you have promised to pay it off, and he needs the money, and has left it with me so you can take it up. Please settle the matter at your earliest convenience, and if you can\u2019t pay it all at once, send me what you can.\nRespectfully,\n(Signed) E. L. Gaither.\u2019\n\u201c That between the 4th of November and the 21st of December, 1891, the witness received a letter from the defendant, post-marked \u2018Mocksville, N. 0., December 21, 1891,\u2019 and is as follows:\n\u201c \u2018 Mr. E. L. Gaither, Mocksville, N. C. :\n\u201c\u2018Dear Sir \u2014 Your letter received, and I have been to town twice to see you, but you were not in. I propose to settle both of your claims the first of next month, which I hope will be agreeable. Will see you in person soon.\nYours respectfully,\n(Signed) P. A. Miller.\u2019\u201d\nIt was also in evideuce that the defendant has never owed the plaintiff anything but this one note sued on.\nThe question is, whether this letter was such a promise or acknowledgment as continued the obligation of the promise contained in the note and prevented the bar of the statute\u2014 whether the words \u201c propose to settle,\u201d taken in connection with the testimony of Gaither and the rest of the letter, can be reasonably construed to mean \u201cpromise to pay.\u201d If they will bear the latter construction, the bar of the statute has been repelled; if not, the plaintiff can have no relief.\nThe word \u201cpropose,\u201d like nearly every other word in the English language, has many meanings. A proposal may mean an offer, as of marriage; an introduction, as of a measure in a legislative assembly. It may also mean an expression of intention or design. \u201cI propose to settle\u201d is the same as \u201cI intend or mean to settle.\u201d Webster defines it, \u201cto form or declare a purpose or intention.\u201d\nA promise is defined to be a declaration which gives to the person to whom it is made a right to expect or claim the performance or non-performance of some particular thing.\nThere are many other meanings of these words, as there are also of the word \u201csettle.\u201d Indeed, there are two distinct words \u201csettle,\u201d the meanings of which have become confused. Rut we have no difficulty in selecting the definition in the Century Dictionary of this word in its colloquial sense \u2014 to liquidate, balance pay \u2014 as appropriate to the present use of it. We must construe language in its ordinary significance, unless it is manifestly used in some special or technical sense.\n. Mr. Gaither writes to the defendant, demanding payment of this specific note and another. The defendant answers: \u201cI propose to settle both of your claims the first of next month, which I hope will be agreeable.\u201d\nIiow would this answer strike a man in an ordinary business transaction? It is evident that its effect would be to raise the expectation of payment at the time specified. The accumulation of adjectives used in their application to the words \u201cacknowledgment and promise\u201d in the statute, has produced the impression that it requires more than an ordinary promise in writing to repel the bar of the statute. The old law, before the promise need be in writing, was, \u201cthe 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.\u201d McBride v. Gray, Busbee, 420; Faison v. Bowden, 72 N. C., 405; Riggs v. Roberts, 85 N. C., 151. Since the statute, the words used are as applicable to this case: \u201cThe promise must be unconditional.\u201d Greenleaf v. Railroad, 91 N. C., 33. It must be \u201ccertain in its terms.\u201d Long v. Oxford, 104 N. C., 408.\nIn Riggs v. Roberts, supra, the words \u201c distinct and specific,\u201d \u201cunequivocal,\u201d are really applied to a promise to pay which would revive a debt from which the debtor had been discharged in bankruptcy. While either one of these qualifying words alone would be applicable to the promise or acknowledgment to take the ease out.of the statute of limitations, there is no special weight superadded by the use of them all at once.\nThe law speaks for itself: \u201cNo acknowledgment or promise shall be received as evidence of a new or continuing contract whereby to take the case out of the operation of this title, unless the same be contained in some writing, signed by the party to be charged thereby.\u201d\nHere is the original contract, liable to be defeated by the plea of the statute, but still continuing. Here is the correspondence between the agent of the payee and the maker himself; it is perfectly definite and certain as to what note is meant. And here is the letter of the defendant in which he refers to the letter which describes it and demands payment; he proposes to settle both claims the first of next month.\nThe defendant was probably no philologist. He used words in their ordinary acceptation, and which could not be misunderstood. We think they fill the letter and spirit of the statute.\nThere is error, and a hew trial must be awarded.\nNew Trial.",
        "type": "majority",
        "author": "MacRae, J.:"
      }
    ],
    "attorneys": [
      "Mr. T. B. Bailey, for plaintiff (appellant).",
      "Messrs. Watson & Buxton, for defendant."
    ],
    "corrections": "",
    "head_matter": "JOHN C. TAYLOR v. P. A. MILLER.\nStatute of Limitations \u2014 New Promise \u2014 Effect of the Words \u201cPropose to Settle.\u201d\nThe words \u201c I propose to settle,\u201d written in answer to a letter demanding-payment of a note barred by the lapse of time, amount to an acknowledgment or new promise sufficient to take the case out of the operation of the statute of limitations.\nCivil ACTION, tried at Spring Term, 1893, of Davie Superior Court, before Boylcin, J.\nUpon the intimation of the Judge that the evidence was not sufficient to rebut the bar of the statute of limitations, the plaintiff' submitted to a nonsuit and appealed.\nMr. T. B. Bailey, for plaintiff (appellant).\nMessrs. Watson & Buxton, for defendant."
  },
  "file_name": "0340-01",
  "first_page_order": 368,
  "last_page_order": 371
}