Opinion
(Fall Riding, 1797.)
The words "I have credited him in my account with the value of the certificates. If he will meet me at New Bern, I will settle with him," were held to take the case out of the operation of the statute of limitations.
CASE. The defendant pleaded the act of limitations, and there was at the last term a verdict for him and a motion for a new trial, being, as the plaintiff's counsel alleged, a verdict against evidence.
reported the evidence to have been that Toomer's attorney applied to the defendant for satisfaction for some certificates he had received of the plaintiff soon after the war, who answered, "I have credited him in my account with the value of the certificates. If he will meet me at New Bern, I will settle with him"; and he further reported that McCAY, J., and himself took time at the last term to consider of the motion for a new trial, and after the term had both agreed that a new trial should be granted; and he was now of opinion the verdict should be set aside and a new trial granted.
"I will settle with him" imports a promise to pay that balance, if any. For what purpose would he settle and ascertain the balance, unless for the purpose of paying it, should it be found against him?
A new trial granted on payment of all costs.
NOTE. — See the cases referred to in the note to Cobham v. Mosely, ante, 6. See, also, McLin v. McNamara, 22 N.C. 82, which decides that a promise to settle an account is an admission of a subsisting liability, and an engagement to pay any balance which may, upon the settlement, be found due, and repels the plea of the act of limitation.