Civil ActioN, in the nature of Assumpsit, tried before Hus-sell, J., at Spring Term, 1874, Duplin Superior Court. This suit was brought to recover the amount of a medical bill, beginning in 1854, and running up to the death of the testator of defendant in the month of November, 1861, and continuing after the death of the testator.
Key passage — most relied on by later courts
“The 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.”
Good law ✅— No negative treatment on recordhow we know
Decided 1875-01-05
How this case has been cited
Cited by 5 later decisions — most recently May 2008
5 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
The evideuce, which is relied on by the plaintiff to take the case out of the statute of limitations, is as follows:
“ W. E. Hill heard testator say, about 1860, that he owed
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the plaintiff a considerable debt, that plaintiff was one of his largest creditors. D. C. Cobb and R. JB, Hatch heard testator about the same time say the same thing. One Barffeld heard the testator in October, 1858, say to the plaintiff,
“
I can’t pay you what I owe you, but I will pay you soon, or next winter, I need what money I have now for building, and it will do you more good to get it in a lump.” Wo definite sum was mentioned, and no account or memoranda shown, men tioned or alluded to, in the conversation.”
¶2
His Honor instructed the jury that if they believed that the testator referred to the account now sued on, they should find for the plaintiff on the issue made by the plea of the statute.
¶3
In this we think his Honor erred. The 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.
McBride
v.
Gray,
Busb. 420.
¶4
In the present case there was evidence in the relations shown to have existed between the parties, from which a jury might have inferred the nature of the debt, viz: that it was for medical services, but there is nothing in the conversations given in evidence, which would enable any one to ascertain its amount.
