The opinion
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WinboeNe, J.
A jury trial having been waived, and ,the parties having consented that the judge find the facts, the findings of fact, supported by competent evidence, are as conclusive as if found by a jury, and are not subject to review by this Court.
Branton v. O’Briant,
93 N. C., 99 ;
Roberts v. Ins. Co.,
118 N. C., 429 , 24 S. E., 780 ;
Matthews v. Fry,
143 N. C., 384 , 55 S. E., 787 ;
Cox v. Boyden,
175 N. C., 368 , 95 S. E., 548 ;
Tyer v. Lbr. Co.,
188 N. C., 268 , 124 S. E., 305 ;
Tinker v. Rice Motors,
198 N. C., 73 , 150 S. E., 701 ;
Brown v. Coal Co.,
208 N. C., 50 , 178 S. E., 858 ;
Schoenith, Inc., v. Mfg. Co.,
220 N. C., 390 , 17 S. E. (2d), 350 ;
Bangle v. Webb,
220 N. C., 423 , 17 S. E. (2d), 613 .
Upon perusal of the evidence shown in the record on this appeal we are unable to say that there is no competent evidence to support each essential finding of fact. The weight of such evidence is for the judge, acting in lieu of jury, to determine.
The question, therefore, presented by appellant for decision is reduced to this: Do the letters, either or both, introduced in evidence by creditor, constitute an acknowledgment of the indebtedness sufficient to take the debt out of the operation of applicable statutes of limitation ?
The statute, originally enacted in 1868, provides that “No acknowledgment or promise is evidence of a new or continuing contract from which the statutes of limitation run, unless it is contained in some writing signed by the party to be charged thereby . . .” C. S., 416, formerly COP (1868), see. 51, The Code of 1883, sec. 172, The Revisal 1905, sec. 371.
Apart from the requirement that the acknowledgment or promise should be “contained in some writing signed by the party to be charged,” the statute, according to decisions on the subject, does not change the character and quality of the acknowledgment or promise theretofore required to repel the statutes of limitation.
Taylor v. Miller,
113 N. C., 340 , 18 S. E., 504 ;
Shoe Store Co. v. Wiseman,
174 N. C., 716 , 94 S. E., 452 ;
Phillips v. Giles,
175 N. C., 409 , 95 S. E., 772 .
Decisions of this Court, both before and since the enactment of the statute, C. S., 416, pertinent to the true interpretation of the law as stated by
Hoke, J.,
in
Phillips v. Giles, supra,
are to the effect that in order to revive a debt which is barred by statutes of limitation there should be an express, unconditional promise to pay the same, or there should be a definite, unqualified acknowledgment of the debt as a subsisting obligation and from which the law will imply a promise to pay.
Mastin v. Waugh,
19 N. C., 517 ;
Smith v. Leeper
32 N. C., 86 ;
Simonton v. Clark,
65 N. C., 525 , 6 Am. Rep., 752 .
Faison v. Bowden, Exr.,
72 N. C., 405 ;
Taylor v. Miller, supra; Shoe Store Co. v. Wiseman, supra; Smith v. Gordon,
204 N. C., 695 , 169 S. E., 423 , and numerous other cases.
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Moreover, it is further declared in
Phillips v. Giles, supra,
that the principle generally prevailing on the subject, and required by the phraseology of the statute itself, C. S., 416, “clearly recognizes that either a promise to pay, or an acknowledgment of the debt as an existent obligation will suffice, unless there be something to qualify the express promise, or to repel that which the law would imply from the definite acknowledgment of the debt as a subsisting obligation.”
An acknowledgment or a promise is, in the wording of the statute, required to be “contained in some writing signed by the party to be charged.” It would be sufficient, however, if the party to be charged be a corporation, that the writing be signed in the name of or on behalf of the corporation by an authorized agent or officer.
Furthermore, in order to take the debt out of an applicable statute of limitations, an acknowledgment or a promise must be made to the creditor himself,
Thompson v. Gilreath,
48 N. C., 494 ;
Parker v. Shuford,
76 N. C., 219 ;
Faison v. Bowden, supra; Hussey v. Kirkman,
95 N. C., 63 , or to an attorney, or to an agent of the creditor acting on behalf of his principal.
Kirby v. Mills,
78 N. C., 124 ;
Shaw v. Burney,
86 N. C., 331 ;
Pope v. Andrews,
90 N. C., 401 .
Applying these principles to the facts as found by the court below, the claim of appellant is confronted with insurmountable obstacles in the way of escape from the operation of statutes of limitation.
In the first place, the letters contain no express, unconditional promise to pay the notes in question. Secondly, if the letters as expressed, with accompanying financial statement, if authorized, be sufficiently definite and explicit as to amount to an unqualified acknowledgment of the debt as a subsisting obligation, from which the law may imply a promise to pay,
Darling v. Brown,
1 Canada, 360, relied upon by creditor, findings of fact as to authoritative communication are lacking. The court below finds as facts: (1) that even though the First National Bank & Trust Company of Elmira, New York, were the financial agent of creditor, it was also the holder of notes of Swansboro Land & Lumber Company, a subsidiary corporation of debtor, and that the financial statement was not sent to the bank in connection with any business of creditor, and .that (2) even though the correspondence (letters) should be construed as constituting an acknowledgment, the secretary and treasurer, who signed the letters, did not have power to bind the corporation by an acknowledgment. The evidence offered is susceptible of such inference, and is sufficient to support the findings.
The judgment below is
Affirmed.
BakNhill, J., took no part in the consideration or decision of this case.