American Multimedia v. FREEDOM DISTRIB.

384 S.E.2d 32 (1989)

AMERICAN MULTIMEDIA, INC., Plaintiff, v. FREEDOM DISTRIBUTING, INC., Defendant.

No. 8915SC78.

Court of Appeals of North Carolina.

October 3, 1989.

*33 Mary K. Nicholson, Greensboro, and Robert H. Hood, III, Graham, for plaintiff-appellant.

Casstevens, Hanner, Gunter & Gordon, P.A. by Marc R. Gordon, Charlotte, for defendant-appellee.

LEWIS, Judge.

Plaintiff argues that the trial court erred in dismissing its complaint on the grounds that the statute of limitations had run. The Statute of Limitations for breach of contract actions in North Carolina is three years. G.S. 1-52. Plaintiff raises for the first time in its brief the applicability of the four-year statute of limitations afforded under Article 2 of the North Carolina Uniform Commercial Code. G.S. 25-2-725. Since plaintiff failed to raise this issue on its motion to dismiss, this issue is not properly before us. Allred v. Tucci, 85 N.C. App. 138, 144, 354 S.E.2d 291, 295 disc. review denied, 320 N.C. 166, 358 S.E.2d 47 (1987). Tallent v. Blake, 57 N.C.App. 249, 252, 291 S.E.2d 336, 339 (1982) ("the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court" quoting, Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Therefore, we do not address the issue of whether reproduction of cassette tapes falls within the ambit of Article 2.

Applying the three year statute of limitations to this case, the pleadings reveal that the statute of limitations has run.

Plaintiff contends that defendant's December 14, 1984 letter acted as an acknowledgement of the debt owed to plaintiff and thus served to toll the statute of limitations. G.S. 1-26 provides, "no acknowledgement *34 or promise is evidence of a new or continuing contract, from which the statutes of limitation ran, unless it is contained in some writing signed by the party to be charged thereby...." Case law construing this statute has made it clear that the promises must be in writing and must manifest a definite and unqualified intention to pay the debt in order for the writing to effectively toll the statute of limitations. Smith v. Gordon, 204 N.C. 695, 698, 169 S.E. 634, 635 (1933). The December 14, 1984 letter merely states that "we plan to pay" and "we expect to pay" the debt. These conditional expressions of defendant's willingness to pay the plaintiff are not sufficiently precise to amount to an unequivocal acknowledgement of the original amounts owed. See, Cooper v. Jones, 128 N.C. 40, 38 S.E. 28 (1901) (A writing stating "I am going to pay it as soon as I can" was conditioned upon ability to pay and was insufficient to toll the statute of limitations.)

In Faison v. Bowden, 72 N.C. 405 (1875), the debtor told his creditor, "I can't pay you what I owe you, but I will pay you soon, or next winter." Finding this to be insufficient to toll the statute of limitations, the court stated:

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 acknowledgement of a present subsisting debt, equally definite and certain, from which a promise to pay such debt may be implied.

Id. at 407. In the present case, the statements by defendant that "we plan to pay" $15,000 every month up to June 1985 and "we expect to pay the balance" fail to show the nature and amount of the debt and at best demonstrate a willingness to pay based on defendant's ability to make the monthly payments. This promise is insufficient to repel the statute of limitations.

Partial payment, intended to acknowledge the underlying debt, will also toll the statute of limitations on the original cause of action. The plaintiff alternatively argues this was the effect of the 20 December 1984 payment. McDonald v. Dickson, 87 N.C. 404 (1882).

Here, even if defendant's partial payment served to toll the three year statute of limitations on the underlying debt, it began to run again from 20 December 1984. Pickett v. Rigsbee, 252 N.C. 200, 205, 113 S.E.2d 323, 327 (1960) (partial payments made by defendant on six notes owned by plaintiff started the statute of limitations running anew from the date of each payment). Since plaintiff's complaint was not filed until January 27, 1988, the statute of limitations had run on the action and plaintiff's claim is therefore barred.

Affirmed.

HEDRICK, C.J., and ORR, J., concur.