Boyd v. Hurlbut

• Decision Date: 31 August 1867
• Citation: 41 Mo. 264
• Parties: C. M. BOYD, Adm'r of CHESTER CARR, Defendant in Error, v. BARBARA HURLBUT, Adm'x of HILLMAN HURLBUT, Plaintiff in Error.
• Court: Missouri Supreme Court

41 Mo. 264

C. M. BOYD, Adm'r of CHESTER CARR, Defendant in Error,

v.BARBARA HURLBUT, Adm'x of HILLMAN HURLBUT, Plaintiff in Error.

Supreme Court of Missouri.

August Term, 1867.

Error to the Fifth District Court.

Woodson & Merryman, for plaintiff in error.

I. There is no question that the statute of limitations operates as a bar to a recovery of the note sued on, unless a new promise sufficient to take the case out of the operation of the statute has been shown.

II. No new promise has been shown to defeat the effectual bar set up under the statute of limitations; the promise relied on is not sufficient--Ang. on Lim. § § 219-25; 3 Mo. 155; 5 Mo. 208; 6 Mo. 21; 23 U. S. D. 386, §§ 102-3; Moore v. Bank of Columbia, 6 Pet. 86, and anthorities; 1 Pe. 351. The new promise must be in writing, and passed upon by the court--3 Pars on Cont. 68, and authorities cited.

III. The statute of limitations was a bar to the maintenance of any suit upon the note upon which the action is founded. If a new promise or acknowledgment of the note sued on in writing was ever made, this suit ought to have been brought upon this new promise, and cannot be maintained upon the original note, it being admitted and shown fully by the evidence that more than ten years expired after the maturity of the note before suit was brought or any new promise made--4 Dana. 505; Ang. on Lim. §§ 224, 227; McKean v. Thorpe, 4 Mo, 358; Davs v. Herring, 6 Mo. 21; Elliott v. Leake, 5 Mo. 208; Buckner v. Wheaton, 4 Mo. 100; 6 McLean, 190; 6 Geo. 21; 32 Barb. 139; 31 Miss. 95; How v. Saunders, 31 Me. 352; 20 Texas, 77; 17 Ohio, 9.

IV. If the promise or acknowledgment relied upon be made after the claim is barred by the statute, then the suit must be upon the new proise--Ang. on Lim. § 254; Burliegh v. Scott, 8 Barn. & C. 36; 11 Pick. 331.

Vories & Vories, for defendant in error.

Our statute requires that an acknowledgment of, or promise to pay, a debt otherwise barred by the statute of limitations, shall be in writing, and signed by the party making the same, in order to relieve it from the bar of the statute. This statute does not, however, require any other or different acknowledgment or promise than would have been sufficient before the statute (if orally made) to take a debt out of the operation of the statute of limitations; it is only required now to be in writing, or rather the evidence of the promise, &c., must now be in writing--7 Bing. 163; 2 Pick. 368; 22 Pick. 291.

The letters read in evidence contained both an acknowledgment of indebtedness and a promise to pay, either of which was sufficient to remove the bar of the statute, and the court should have so instructed the jury--Barnard v. Willie, 22 Pick. 291; Bangs v. Hall, 2 Pick. 368; Hayden v. Williams, 7 Bing. 163; 2 Greenl. Ev. §§ 441-43, and cases referred to; Ang. on Lim. 244, n., 247, 255; 2 Stark. Ev. 470-82.

If a general acknowledgment of indebtedness is made and one indebtedness is shown to have existed, the law will presume the acknowledgment to have referred to said indebtedness in the absence of proof to the contrary, and the burden is on the defendant to show that it referred to a different debt--Greenl. on Ev. § 441, &c. Bailey v. Crow, 21 Pick. 323; Woodbridge v. Allen, 12 Metc. 470; Kales v. Kelly, 2 Texas, 541; Brown v. State Bk., 5 Eng. (Ark.) 134; Wood v. Wilds, 6 Eng. (Ark.) 754; Gray v. James, 6 Gill, 82; Whiting v. Bigelow, 4 Pick. 110; French v. Burgough, 1 Bing. 266; 1 Esp. 435; Elliott v. Leake, 5 Mo. 208; Davis v. Herring, 6 Mo., 21; 2 Stark. Ev. 482, &c.

Whether the acknowledgment or promise relied on is sufficient to take the case out of the statute of limitations, is a question of law for the court; but whether the promise or acknowledgment referred to the debt in question, is a question of fact for the jury--Dickenson v. Hatfield, 1 Moody & R. 141; Bird v. Gorman, 3 Bing. (N. C.) 883; Waller v. Lacey, 1 Man, & G. 54; Williams v. Griffith, 3 Esp. 335; Haybacker v. Rees, 12 Pa. 264; Davis v. Spanner, 14 Pa. 275; Densmore v. Densmore, 3 Shep. 433; Hayden v. Williams, 7 Bing. 163; 22 Pick. 291.

The action was properly brought on the note--the proper practice being to sue on the original cause of action; and when the statute is pleaded, set up the promise relied on in the replication--Ang. on Lim. 337, old ed.; Leaper v. Talton, 16 East. 423; Williams v. Dyde, Peck, 68; Yea v. Fouraker, 2 Burr. 1099; Clark v. Bradshaw, 3 Esp. 155; Brian v. Horseman, 4 East. 599; Sluby v. Champlin, 4 Johns. 451; Baxer v. Penniman, 8 Mass. 133; Shippey v. Henderson, 14 Johns. 178; Hadsten v. Haindge, 2 Sands, 63; 2 Hawks, 209; 2 Dev. & B. (N. C.) 375; 4 Harr. & J. 485; 4 Johns. 461; 8 Wend. 601; Low v. Shaler, 3 Cow. 131; Heylise v. Hastings, 4 Carth. 471; Homer v. Fish, 1 Pick. 435; 3 Pick. 75; Martin v. Williams, 17 Johns. 330; Johnson v. Beardslee, 15 Johns. 4.

Our statute only declares that civil actions shall not be commenced, &c. does not destroy the original cause of action, but on the contrary, provides that an action may be commenced if an after promise in writing be made. (See the cases above cited.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought his suit in Platte county on a promissory note, made by defendant's intestate, and on the trial the statute of limitations was pleaded as a defence. To remove the obstacle interposed by the statute, the plaintiff introduced letters written by the maker of the note to the payee in his lifetime acknowledging an indebtedness, and stating that he was making arrangements and hoped to be able to pay three hundred llars by the first of January then next ensuing after the date of the tter, and several hundred dollars each year thereafter. The note was for upwards of sixteen hundred dollars, and the letters were not written ll more than ten vears nad elapsed after the making and executing the ame. The letters referred to no special or particular debt, and the Circuit Court held that the acknowledgments and promises contained in them were insufficient evidence to revive the cause of action, and by its instructions withdrew it entirely from the consideration of the jury. Judgment having been rendered for the defendants, the cause was taken to the District Court sitting at St. Joseph, where the judgment of the Circuit Court was reversed, and the cause remanded, and from the decision of the District Court the defendants have prosecuted their writ of error.

The acknowledgments and promises to pay were contained in writing, in compliance with the statute, and if they were made in a sufficiently clear and explicit manner, and by their terms they were unequivocal and determinate, they will completely destroy the defence sought to be set up as a bar. To take a case out of the statute of limitations there should be either an express promise to pay, or an acknowledgment of an actual subsisting debt, on which the law would imply a promise, and it will be sufficient if the party acknowledges the indebtedness, and that it remains unpaid without any expression of willingness to remain bound--Buckner v. Johnson, 4 Mo. 100; Elliott v. Leake, 5 Mo. 208.

But if the acknowledgment is accompanied with conditions or circumstances which repel or rebut the presumption of a promise or intention to pay; or if the expressions used be vague, equivocal or ambiguous, leading to no certain or determinate conclusion, they will not satisfy the requirements of the statute, and the evidence ought not to be submitted to a jury for them to found a verdict on mere inference--2 Greenl. on Ev. § 440, & n. 3.

In the leading case of Bell v. Morrison, 1 Pet. 362, Mr. Justice Story says:--“If the bar is sought to be removed by the proof of a new promise that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and to be in its terms unequivocal and determinate and if any conditions are annexed, they ought to be shown to be per formed; if there is no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowl...