Brenneman, Martin & Co. v. Edwards

• Decision Date: 17 December 1880
• Citation: 55 Iowa 374,7 N.W. 621
• Court: Iowa Supreme Court
• Parties: BRENNEMAN, MARTIN & CO. v. EDWARDS.

55 Iowa 374

7 N.W. 621

BRENNEMAN, MARTIN & CO.

v.EDWARDS.

Supreme Court of Iowa.

Filed December 17, 1880.

Appeal from Dubuque circuit court.

Action upon a judgment rendered by a justice of the peace in the state of Pennsylvania. There was a verdict and judgment for plaintiffs. Defendant appeals. The facts of the case involved in the question decided appear in the opinion.Fouke & Lyon, for appellant.

Hurd & Daniels, for appellees.

BECK, J.

1. The judgment upon which suit was brought was rendered in 1854. The plaintiffs allege in their petition, in order to take the case out of the operation of the statute of limitations, that defendant in writing, within 10 years, admitted that the defendant is unpaid, and promised to pay it. In an amended petition, written instruments relied upon to defeat the statute are set out by copy. The court instructed the jury that these writings, if the jury found they referred to the judgment in suit, “contain an admission sufficient to remove the bar of the statute of limitations, and entitle plaintiffs to judgment for the amount due.” An objection made by defendant to this instruction presents a question, the decision whereof is decisive of the case.

2. The instruments set out in the amended petition, and referred to in the instructions to the jury, are two letters to the lawyers of defendant, holding the claim for collection, and are in the following language:

“EPWORTH, IOWA, February 16, 1872.

James Burt & Sons--DEAR SIR: Yours of the 13th is at hand. I will come and see you in regard to that matter of ours as soon as I can. I have no money at present. I will try to collect some. What I have coming is mostly in the hands of poor people, and hard to get. But I will make some arrangement with you as soon as I can.

+---------------------------+
                ¦Yours, truly, ¦D. EDWARDS.”¦
                +---------------------------+
                

“EPWORTH, May 2, 1872.

I acknowledge I ought to come or written before this time. I have been laid up with rheumatism a great part of April. I have just got to work, and I want to get my crop in the ground, and then I will come and see you and make some arrangements with you. Mr. Roberts' decision was that I could beat you, but I have not much faith in it, though he said I had better pay $100 than to make a defence. So you please hold on till I come, and we will make it all right.

+---------------------------+
                ¦Yours, truly, ¦D. EDWARDS.”¦
                +---------------------------+
                

The testimony shows that these letters refer to the claim based upon the judgment in suit, and that they were written in response to letters making a proposition for compromise or settlement for a sum less than was claimed to be due upon the judgment. The statute provides that “causes of action founded on contract are revived by an admission that the debt is unpaid, as well as by new promise to pay the same. But such admission or new promise must be in writing, signed by the party to be charged thereby.” Code, § 2539. We are to determine whether these letters contain a promise or admission contemplated by this statute. It is very plain that not one word admitting the debt to be unpaid is found in the letters. Discussion cannot make this proposition plainer. It is equally clear that the letters contain no promise to pay the debt. There is a promise “to make some arrangements” with the attorneys. But this is clearly a promise not to pay the debt, but to compromise it by payment of a part of it. Such a promise, we believe, cannot be regarded as a promise...