17 D.C. 485 (D.C.D.C. 1888), 23,973, Cunkle v. Heald

Docket Nº:At Law. 23,973.
Citation:17 D.C. 485
Opinion Judge:Mr. JUSTICE COX:
Attorney:MR. R. D. MUSSEY, for plaintiff: MR. A. S. WORTHINGTON, for defendant:
Case Date:June 25, 1888
Court:Supreme Court of District of Columbia

Page 485

17 D.C. 485 (D.C.D.C. 1888)




At Law. No. 23,973.

Supreme Court, District of Columbia.

June 25, 1888

1. The Act of Congress of 1865, sec. 4, providing for the trial of issues of fact by the Court instead of a jury, does not apply to this Court.

2. But under section 7 of the Act of 1863 (the Organic Act), and Rule 39 of the Court, issues of fact may tried by the Court and an appeal be taken from its finding, although no stipulation in writing waiving a jury has been filed in the case.

3. An acknowledgment of a debt barred by limitations, casually made by the debtor to a third person and not communicated or intended to be communicated to the creditor, is not sufficient to revive the debt.

4. The decision of this Court in Soper vs. Baum, 6 Mackey 29. explained and distinguished from the present case.

MOTION for a new trial, on exceptions to the finding of the Court on a trial without a jury.

THE HISTORY AND FACTS are fully stated in the opinion.

MR. R. D. MUSSEY, for plaintiff:

If Kearney vs. Case, 12 Wall 275, governs this action, the judgment must be affirmed.

The record shows that in this case both parties waived a jury; but that waiver not being by a " stipulation filed with the clerk of the Court," " the parties are concluded by the judgment of the Court on all matters submitted to it."

The Statute of Limitations in force here is the Maryland Act of Assembly, and in adopting it for this District it is fair to say that " Congress adopted for this purpose the law of Maryland as it was understood in Maryland." The Maryland Courts have uniformly held that the validating acknowledgment may be made to a third person ( Oliver vs. Gray, 1 Harr. & G., 204); this holding has never been disturbed by legislation in this District; nor by ruling of the Supreme Court of the United States; nor by the courts of this District. In Soper vs. Baum, 6 Mackey 29, it is affirmed.

MR. A. S. WORTHINGTON, for defendant:

So much of Soper vs. Baum 6 Mackey 29, as undertakes to decide upon the authority of Oliver vs. Gray, 1 Harr. & G., 204, that " an acknowledgment need not be made to the plaintiff himself, but may be made to anybody else," is pure obiter and it was not only obiter in Soper vs. Baum, but it is obiter in the case from which the doctrine was cited.

As further bearing upon the question whether the resolution of Oliver against Gray has always been recognized as the law in this District, attention is invited to what was said by this Court in Otterbach vs. Brown, 2 Mac A., 546; Thompson vs. Shepherd, 1 Mackey 338, and to what is said by the Supreme Court of the United States in Moore vs. Bank of Columbia, 6 Pet. 86; Fort Scott vs. Hickman, 112 U.S. 163; Shepherd vs. Thompson, 122 U.S. 231.

The doctrine of the United States courts and of most of the State courts now is that the acknowledgment is simply evidence of a promise. If the acknowledgment be unqualified and be made to the plaintiff or his agent, or possibly if it be made to a stranger with instructions to communicate it to the plaintiff, it may, if it stands by itself, be sufficient evidence from which to imply a new promise. But if it be coupled with the expression of an intention not to pay, or if it be made under such circumstances as not to indicate that it was intended for the plaintiff's ear, it is of no value. See Story, Eq, Jur., 1521 A; Wood, Limitations, sec. 79; Wakeman vs. Sherman, 9 N. Y., 91; Biddel vs. Brizzolari, 64 Cal. 354; Maxwell vs. Reilly, 11 Lea 307; Kyle vs. Wells, 17 Pa. 286; Parker vs. Shuford, 76 N. C., 220; Kirby vs. Mills, 78 N. C., 124; Niblack vs. Goodman, 67 Ind. 183; McKinney vs. Snyder, 78 Pa. 497; Cape Girardeau Co. vs. Harbison, 58 Mo. 97; Troesdale vs. Anderson, 9 Bush. 276; McGrew vs. Forsyth, 80 Ill. 596; Ringo vs. Brooks, 26 Ark. 540.

The doctrine of the ninth resolution in Oliver vs. Gray, twenty years later, was repudiated in Maryland in Hoffar vs. Dement, 5 Gill 136.



This was an action brought upon a promissory note for $900, and for money lent, amounting to $400 more, making in all $1,300. The declaration contains also the common counts.

The principal defense was the Statute of Limitations. But the plaintiff relies upon a new promise to avoid that defense. By mutual consent of the parties a jury was waived and the testimony was submitted to the Court. After the testimony on behalf of the plaintiff was closed, the defendant's counsel moved the Court to rule as a matter of law that on this evidence the plaintiff could not recover on the ground that the only evidence that had been offered to overcome the plea of the Statute of Limitations was not competent for that purpose, and on the further ground that it was not sufficient. The Court denied the motion. The defendant excepted and brought the case here.

The first...

To continue reading