EDMUND S. MOORE vs. JOHN R. HYMAN AND AL.

To repel the statute of limitations, a promise must be, either for a sum certain, or for that, which may be, and afterwards is, reduced to a certainty.

A. brought a suit against B., for the amount of one hundred and fifty barrels cf herrings, placed with B. for sale. The statute of limitations was pleaded. B. claimed a discharge for six barrels, and as to this the parties disagreed. B. asked A. why he sued ? The reply was for a settlement. B, raid wo are willing to settle, and always have been willing ; and the matter was then, by agreement, referred to arbitrators who never decided" Held, that the promise, implied in the language used, was uncertain as to the sum, and, that sum never having been ascertained in the mode agreed on, the promise being for an uncertain sum, was too vague to haveany legal effect.

Tlie cases of Smith v. Peeper, 10 Ire. 86, Smallwood v. Smallwood, 2 D. and B. 335, Peoples v. Mason, 2 Dev. 361, and Arey v. Stephenson, 11 Ire. SB, cited and approved.

Appeal from the Superior Court of Law of Martin county, at the Spring Term, 1852, his Honor Judge Dick presiding.

This ivas an action of assumpsit, brought against the defendants, doing business in partnership, on the following receipt executed by them :

“Received of Edmund S. Moore one hundred and fifty barrels of herrings, to be sold for him on commission, May 1841. G. W. & J. R. HYMAN.”

It was proven, that, more than three years before the' commencement of the suit, the plaintiff and defendants had endeavored to settle for the fish, sold by the latter, but they did not, because they differed about the number of barrels, for which, it was alleged by the plaintiffj the defendants ought to account. The action was commenced at the January Term of the County Court of Martin, 1849. During that Term the plaintiff and one of the defendants met in the presence of several persons, and a conversation ensued between them, in which the defendant asked the *273plaintiff why he had sued him; the plaintiff replied,that he had sued him for a settlement. The defendant said, he was willing to settle, and had been so at all times. It was then proposed by the defendant to refer the suit to arbitrators ; the plaintiff agreed to it; and the defendant said he would choose one arbitrator, and the plaintiff another — ■ the plaintiff said the defendant might select both men; and thereupon, the defendant selected two men, as arbitrators, who were present, who were accepted by the plaintiff, and who made no objection to arbitrate it. The plaintiff then stated, that he, and the other defendant, John R. Hyman, who was not present, had once attempted to settle the matter, and that they differed about six barrels of the fish ; and that all he had ever received was $100 at one time, and- afterwards $7.0: to which the defendant made no reply. At the next Term of the County Court, the defendant, George W. Hyman, said he declined to allow it to be arbitrated; and be preferred the suit should take its course.

The Judge was of opinion, that the statute of limitations, which was pleaded, was a bar to the recovery. The plaintiff submitted to a non-suit. -Rule for a new trial : Rule discharged: Appeal to the Supreme Court.

Moore and P. II. Winston, Jr., for the plaintiff.

Biggs and Rodman, for the defendants.

Pearson, J,

To repel the statute of limitations, there must be a promise to pay the debt, sued on, either expressed or implied ; and the terms used must have sufficient certainty to give a distinct cause of action, by the aid of the maxim, “idcertum est, quod cerium reddi potest.” Smith v. Leeper, 10 Ired. 68. The rule is settled, but the difficulty is in applying it.

The plaintiff relies upon a conversation, had with one of the defendants, at the Term, to which the suit was returned, *274to repel the statute ; and insists, that the law will imply a promise to pay his debt, on two grounds : The defendant asked the plaintiff why he had sued him : plaintiff said, he had sued him for a settlement; defendant replied, he was •willing to settle, and had been so at all times. The question is, does the law, with the aid of the above maxim, from this evidence imply a promise to pay the debt sued for?

The word ‘"settle” is sometimes used in the sense of “paving,” as if, upon a balarme beirg struck, one says, “1 have not the money now, but will call in a few days and settle it.” Here, a promise to settle is a promise to pay. The word was considered as being used in this sense, in Smith v. Leeper. At other times, “settle” is used in the sense of accounting together and striking a balance by computation. When so used, a promise to settle implies a promise to pay the balance. For, why settle, unless you intend to pay ? And this implied promise to pay is sufficient to repel the statute ; for, although the amount is indefinite at the time of the promise, yet a mode is agreed on, by’which it can certainly be ascertained; and the maxim, above cited, 'applies. In this sense, the word “ settle” is' used in Smallwood v. Smallwood, 2 Dev. and Bat. 335.

At other times, it is used in the sense of adjusting matters of controversy, about which there had been a difference of opinion, and striking a balance b}T agreement. When so used, a promise to settle implies a promise to pay the balance, provided it is agreed on. It is a conditional promise. The amount is indefinite — a mode is pointed out, by which it may or may not be made certain — if it be made certain in that mode, the promise becomes absolute • but if it is not attempted, or is ineffectual, by reason of the disagreement of the parties as to the facts, then the condition being unperformed, the promise is of no force, being a promise to pay an indefinite amount, which cannot be *275made certain. In this sense the word “settle” is used in Peoples v. Mason, 2 Dev. 367.

The maxim, above cited, applies only when the amount can be made certain by reference to some paper, or by figures, or in some other infallible mode: in which case it is considered the same, as if the amount was ascertained at the time of the promise. But if the mode pointed out, by which the amount is to be made certain, either may, or may not, effect the object — as if one says, “ I will pay you .the balance due on settlement, provided we can agree on it” — the maxim has no application, unless the amount is made certain in that way ; for, if that fails, it cannot be made certain. This distinction will reconcile many of the cases. We do not feel at liberty to follow those, that carry the doctrine beyond the fair meaning of the statute.

The second ground, relied on by the plaintiff, is the agreement to refer the matter in controversy to arbitrators; and it is insisted, that from this the law implies a promise to pay; for, why refer, unless you intend to pay ? The question is, does the law, with the aid of the above maxim, from an agreement to refer the matter to arbitrators, imply a promise to pay the debt sued for P From an agreement to refer, the law implies a promise to pay the amount, that the arbitrators may find; but there is no ground for the further implication of a promise to pay the amount, that a jury may find. On the contrary, the more reasonable inference is, that if the matter is to proceed in a regular course of law, the defendant intends to rely on every ground of defence that the law gives him; and there is nothing, from which it can be implied, that he waives a protection giveji to him by law and voluntarily takes on himself “ the onus ” of making a full defence to the plaintiff’s demand, after the lapse of some eight or ten years.

The implied promise to pay the amount, that the arbitrators may find, leaves the sum indefinite, but a mode is *276agreed on, by which to make it certain. If it is made certain in that way, the promise- becomes absolute ; but if it is not made certain, there is a promise to pay an indefinite amount, which is of no force and cannot be aided by the maxim, “ id certum est, quod certum reddi potestfor, as is already said, that maxim only applies to cases, where there is a reference to some paper, or where the thing can be made certain by computation or figures, or in some other infallible mode, not depending on the agreement of the. parties, or the finding of arbitrators, or the finding of a jury.

In this case the plaintiff holds a receipt of the defendants for one hundred and fifty barrels of herrings, dated 1841. The defendants claim a discharge, as to six of the barrels. This is objected to by the plaintiff, and the parties do not agree. Afterwards the plaintiff brings suit. The defendants ask, why he sued ? The reply is, for a settlement; whereupon, the defendants say, we are willing to settle, and have always heen willing; and it is then agreed to refer the matter to arbitration. Upon what principle can the law, from this evidence, imply a promise to pay the debt, sued for ? Does the promise include or exclude the value of the six barrels disputed ? This is uncertain ; and not having been made certain, either by the agreement of the parties, or the finding of the arbitrators, the promise implied is to pay an indefinite sum, and is too vague to have any legal effect. To allow it to repel the statute, “ would virtually take away the protection, which the Legislature meant to give against stale demands.” — Arey v. Stephenson, 11 Ired. 86.

Per Curiam. Judgment affirmed