
    
      F. Robbins v. John Farley, administrator of Eliza Nunan.
    
    Defendant’s intestate, in a conversation with her own attorney, said “ that the plaintiff was to receive compensation for his services” to her, and “that she had never paid him ” —held not to be such a promise as would revive, a debt already barred by the Statute of Limitations — According to the rule laid down in Yowng v. Montpoey, 2 Bail. 278.
    Acknowledgments, or promises, to obviate the Statute of Limitations, are not sufficient, unless they specify or plainly refer to some particular demand or cause of action, to be revived or created by them. — Dualey’s Rep. 321, Lockliarrt v. Eaves.
    
    
      Before Mr. Justice O’Neall, at Charleston, May Term, 1847.
    This was an action of assumpsit, to recover compensation for hiring out pianos belonging to the deceased, and for collecting the hire, aud for storage of the same.
    Mr. E. Cowperthwaite, the general partner of the plaintiff, was offered as a witness for the plaintiff, and objected to on the score of interest. Ho was examined, on his voir dire, by the defendant, and stated that he had no interest whatever in this matter. That it was altogether an individual interest on the part of Mr. Robbins; that, when he came' into the concern, the plaintiff reserved the right to store Mrs. Nunan’s pianos. He was sworn in chief, and proved that the plaintiff was the general business agent of Mrs. Nunan; that she had from 30 to 50 pianos; from 30 to 40 were hired out; some were always in store. The plaintiff collected the hire. The plaintiff kept the books: the hiring was entered in them. Mrs. Nunan frequently referred to them, and settled by them. Five per cent, he said, was a very reasonable compensation for the plaintiff’s services in hiring the pianos, and collecting the hire. Mr. Robbins, he said, charged- less for storage than he would have done: $150 per year is as little as could be charged for storage. He said, on his cross-examination, that he knew Mrs. Nunan from July, ’41: there were mutual relations of friendship between her and Mr. Robbins. She died 10th June, ’45. After her death, the plaintiff handed over something like $50 — the balance on hand of money collected. As to the value of compensation and storage, Messrs. Hagood & Silox fully concurred with Mr. Cowperthwaite. George Buist, Esq., the plaintiff’s attorney, proved that he was intimately acquainted with Mrs. Nunan. She always referred to the plaintiff as her agent. He (the plaintiff,) kept the pianos in his front room. A few months before Mrs. Nu-nan’s death, he (the witness,) went to get an account, which she wished him to collect. She ifefeired him to the books in the plaintiff’s possession : she said they were regularly kept, and right. She told this witness, then, that the plaintiff was to receive compensation for his services: she said she never had paid him any thing. He advised her, as life was uncertain, to have a settlement, especially as she was in the plaintiff’s poioer, and he might make an unreasonable charge. She said, if she died, she did not care what he charged. He said, after her death, he advised the plaintiff to pay over the $50 of balance in his hands, and deliver over the pianos. The account in the book of the hire of pianos, he has examined, and the amount set down in the account m suit, on which the commissions are charged, is right. On his cross-.examination, he said he had advised the plaintiff to settle, according to an informal will of Mrs. Nunan: it was shown to him — he said it. was her writing. There is no charge on the books for commissions or storage. He said he believed Mrs. Nunan would have paid the plaintiff’s bill without hesitation. He said, after Mrs. Numan’s death, the plaintiff presented an account to the administrators, for $914. This was according to his advice, which was, to be sure to charge less than what was due to him. The books alluded to in the 2d ground, were those in which the plaintiff kept the account of the hire of thé pianos. After Mr. Co wperth waite’s and Mr. Buist’s testimony, proving Mrs. Nunan’s recognition of them as her books, and her statement that they were right, the Circuit Judge thought they were to be regarded as if kept by herself. They were therefore received in evidence. The account sued on was $972 74.
    In the defence, the defendant gave in evidence an informal will of Mrs. Nunan. It states that she wished the plaintiff to collect all moneys due to her: that she wished him to have two choice pianos. She gave by it $50 to the plaintiff’s little daughter. Miss A. was to ha-ve the choice of six pianos.
    Part of the items in the plaintiff’s account were more than 4 years and 9 months before action was brought. The Statute of Limitations was pleaded.
    The jury were instructed by his Honor to inquire — -1st, Were the services of the plaintiff gratuitous, or in expectation of a legacy? If so; the plaintiff could not recover. The testimony of Mr. Buist, if believed, (and there was no reason to doubt him,) put that beyond question. For he proved Mrs. Nunan’s declarations that he (the plaintiff,) was to have compensation.
    2d, The effect of the Statute of Limitations. The jury were told that such of the items as were more than 4 years and 9 months before action^brought, must be excluded, unless a clear subsequent promise had been proved within that time. This, it appeared, was done by Mr. Buist’s proof, that shortly before her (Mrs. Nunan’s) death in 1845, she told him that “the plaintiff was to be compensated for his services — that she had not paid him any thing,” and “if'she died, she did not care what was charged.” Here again Mr. Buist’s credit was submitted to the jury, and this is what is meant in the 3d ground, which alleges that the question of promise, by Mrs. Nunan in her life time, was left to the jury.
    3d, The amount which the plaintiff was entitled to recover, was carefully submitted to the jury. They found for the plaintiff his whole account, $972 74.
    The defendant appeals, on the grounds —
    1. That E. R. Co wperthwaite, partner of plaintiff, and an interested witness, was permitted to testify, although objected to, the books of plaiutiff, given in evidence, showing that interest, and the charge for storage, being for pianos of intestate, kept in the store of Robbins and Cowperthwaite, for which they paid rent.
    
      2. That the books of plaintiff, although not such as came within the law of book entry, and extending to a period beyond intestate's death, were admitted in evidence, although objected to.
    3. That the plea of Statute of Limitations was a complete answer to the portion of the account barred by the Statute, as there was no proof of an acknowledgment of that portion of the account, or promise to pay it, by Mrs. Nunan in her life time, or her administrator since her death, and the charge of his Honor on this point, leaving the question to the jury, it is respectfully submitted, was erroneous.
    4. That the plaintiff himself presented an attested account to the administrator for $914 02, and afterwards sued and has recovered on a new account, for $972 74, covering a shorter period than the former account, and his Honor omitted all notice of this in his charge.
    5. Because the evidence clearly proved that the plaintiff never made a charge for his services or storage, and intended the same as a gratuity, or rendered them in expectation of a legacy, and was not entitled to recover.
    6. That the charge of his Plonor and the verdict of the jury were, in the foregoing and other respects, contrary to law and evidence.
    YEADON & MACBETH, Defis Atfys.
    
    Yeadon, for the motion,
    contended that the services were rendered by the plaintiff in hopes of a legacy, and had since been converted into a charge.
    Bryan, contra,
    said we set up no contract, but we claim remuneration for services rendered. — Chit, on Con. 541 (edition of 1844); 11 Mass. Rep. 34; 14 do. in note to Chit, on Con. 541. The work was done not as a gratuity, but at least with the assent of the intestate. There was no relationship between these parties. In the case in 2 Bailey, 308, the parties were connected, and the presumption was, that the original intention was not to charge. The case in 2 Bay, 101, was a case of two physicians. The question of gratuity is one entirely for the jury. We rely also on the conversation of the intestate, admitting that she expected to pay for the services rendered, to take the case out of the Statute of Limitations.
   Evans, J.

delivered the opinion of the Court.

The promise relied on to remove the bar of the Statute of Limitations, is the conversation of Mrs. Nunan with her attorney, Mr. Buist, in 1844. This is stated in the report to be as follows —-“that the plaintiff was to receive compensation for his services; she said she had never paid him.” This is dearly not such a promise as would revive a debt already barred, according to the rule laid down in Young v. Montpoey, 2 Bail. 278. But as only a part of the demand now claimed was then barred, it is contended that the admission is sufficient to arrest the Statute as to all then due, and not barred by the Statute, The case of Young v. Montpocy was of a debt already barred, and it is then said that the rule is not so strict but that slight promises will suffice in cases where the bar is not complete at the time, Within this rule, and on the authority of the case decided before, I suppose such a declaration as is above stated, if made to the plaintiff or his agent, and had reference to any particular debt or demand, might be sufficient. But it was a conversation with her own attorney, and there is nothing in the evidence to connect that admission with the claim set up in this action. It amounts to nothing more than this — that the plaintiff had rendered her some services for which she had not paid, but expected to pay — but what the services were, or what was-to be paid for them, is left entirely uncertain. She could not have meant the amount now sued for, as it is not pretended that at that time the plaintiff had made out any account against her. The rule laid down in Lockhart v. Eaves, Dudley’s Rep. 321, is, that acknowledgments, or promises, to .qbíróte the Statute of Limitations, are not sufficient, unless fthey specify or plainly refer to some particular demand or Cpuiseof action — and the same rule was applied in the case of Williamson v. Bacot, decided in Columbia, May T. 1837. There ,the proof was, the defendant had promised not to plead the Statute of. Limitations, and it was held to be too general. Jt ¡should .have applied to some particular debt or cause of .action. The case of Bonethea ads. Johnson, is not to the contrary. There the promise to settle had reference to the particular cause .of action sued on. Nor do I remember to have ¡seen any case .at variance with this rule. I am therefore of opinion that the.admission proved does not prevent the bar of the Statute .of all .that part of the account which had accrued four yéars and nine months before action brought. This goes-back to January, 1842: and according to this, there is one .hundred and twenty-four dollars and six cents which the plaintiff ought not to have recovered. If the plaintiff will release this, the motion is dismissed — if not, a new trial is ordered.

Richardson, J. O’Nearl, J. Wardeaw, J. and Frost, J. concurred.

Withers, J. absent.

Motion refused, nisi  