# Cooper v. Jones.

> Supreme Court of North Carolina · March 12, 1901 · 128 N.C. 40

URL: https://www.frixlaw.com/law-library/cases/3670436

## Case

- **Full name:** Cooper v. . Jones
- **Court:** Supreme Court of North Carolina
- **Decided:** March 12, 1901
- **Citations:** 128 N.C. 40; 38 S.E. 28; 1901 N.C. LEXIS 325
- **Precedential status:** Published
- **Opinion:** Opinion of the court by OooK
- **Judges:** OooK
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3670436

## Opinion text

OooK, J.
It is the policy of the law that there shall be an end of
litigation
— interest
rei publica ut sit finis Utium.
And after a cause is once barred, it can not be revived except by a strict and full compliance with the statute permitting it.
*41
Tlie “due bill” sued upon was barred before the action was begun, and the Statute of Limitations was pleaded. The plaintiff then declared upon a new promise and sets up two letters written him by the defendant. The language relied upon in one letterto establish the
promise
is, “You have my due bill, and I am going to pay it as soon as I possibly can.” In the other, it is, “As soon as I can, I am going to settle all ■of my indebtedness. ” The latter expression is vague and indefinite. The former is conditional — predicated upon the possibility of his ability.
It has been uniformly held by this Court that the acknowledgment and promise, in order to sustain an action under section 112 of The Code, must be express, specific and unconditional. See cases cited thereunder in Clark’s Code.
This case differs from that of
Taylor v. Miller,
113 N. C., 340 , in that Miller wrote, “I promise to settle both of your claims the first of next month”; while in this case the promise is to pay “as soon as I possibly can.” In the former, the promise was distinct, specific and certain; in this case, it is conditional.
This construction is sustained in
Mallock v. Chadwick,
11 Maine, 313, the language being, “when I was (am) able.”
Bidwell v. Rogers,
10 Allen (Mass.), 438 (“as soon as I can”);
Sedgwick v. Gerding,
55 Ga., 261 (“as soon as I have the money I shall remit”) ;
Tompkins v. Brown,
1 Denio (N. Y.), 241 (“as soon as he is able”). In no view can the language used in the letter be so construed as to come within the requirement of the statute. Code, sec. 112.
There is error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3670436. Public record. Not legal advice.