Burnett v. Turner

• Decision Date: 18 November 1912
• Citation: 151 S.W. 249,105 Ark. 290
• Parties: BURNETT v. TURNER
• Court: Arkansas Supreme Court

151 S.W. 249

105 Ark. 290

BURNETT v. TURNER

Supreme Court of Arkansas

November 18, 1912

Appeal from Mississippi Circuit Court, Osceola District; Frank Smith, Judge; reversed.

Judgment reversed and cause dismissed.

Appellant pro se.

1. To suspend our statute by a promise, whether before or after the bar applies, the promise or acknowledgment must be in writing. Kirby's Dig,. § 5079; 25 Cyc. 1351; 26 Ark 541; 66 Id. 464; 77 Id. 228. There must be an express written promise to pay. 10 Ark. 134; 9 Id. 455; 12 Id. 595; 42 N.Y. 443; 45 W Rep. 446; 93 Id. 220; 25 Cyc. 1351; 72 Ga. 74.

2. When the statute is pleaded, the burden is on plaintiff to show the action is not barred. 69 Ark. 311; 64 Id. 26; 10 Id. 598.

J. T. Coston, for appellees.

The forbearance to sue was sufficient consideration to bind defendant. No one can set up his own breach of faith or fraud to the injury of the person deceived. 15 Wend. 313; 60 Mo. 630; 80 Ky. 312. A parol promise to pay, if based on sufficient consideration, is valid, the statute of frauds notwithstanding. The statute does not apply to cases like this. 34 S.W. 558; 21 N.J.Eq. 101; 1 A. 205.

MCCULLOCH, C. J. SMITH, J., not participating.

OPINION

MCCULLOCH, C. J.

Appellees are practicing physicians, and instituted this action before a justice of the peace against appellant to recover an account for professional services rendered. The account which forms the basis of the action seems to embrace items alleged to be due the two physicians separately, that is to say, $ 101.50 to Doctor Turner and $ 50.00 to Doctor Dunavant; but no question is raised as to the improper joinder of the two causes of action. The suit was first instituted by Doctor Turner, and afterwards Doctor Dunavant was allowed to join as a party plaintiff. But no objection is made to this, and both of these questions pass out of the case.

Appellant does not dispute the items of the account, but relies entirely upon his plea of the statute of limitations. It is conceded that the action was not instituted until more than three years after the services were performed; but appellees seek to take the case out of the operation of the statute on account of a special promise on the part of appellant to pay at a future date or rather to pay in the future on the happening of a certain event. The facts of the case are very simple, and there is but slight conflict in the testimony. In October, 1906, appellant was wounded by a gun or pistol shot, and Doctor Turner was called to attend him. He did so, and gave appellant continuous attention for something like a month, when the condition of the wound rendered a surgical operation necessary. In this emergency Doctor Dunavant was called, and performed the operation, charging a fee of $ 50.00 therefor. Doctor Turner's bill was $ 101.50 for his entire services. Nothing has ever been paid on the account, and more than three years elapsed before the institution of this action. Doctor Dunavant testified that he frequently requested appellant to pay the bill, and on one occasion--the particular time not mentioned--appellant promised to pay the bill when his (appellant's) father should be released from the penitentiary in the State of Missouri, where he was then incarcerated. Doctor Dunavant states the transaction in the following language: "I never put the man's name on my books at all. I told Doctor Turner what I would charge him, and he looked after the collecting. I just left it with him to collect. In the meantime I had asked Doctor Turner about it, and he told me that Mr. Burnett was slow, and I saw him and got after him myself, and he says, 'My papa is in trouble up in Missouri, and as soon as I can get him out of it I will pay it all,' and under that kind of a promise I held off."

In other parts of the testimony it is disclosed that appellant's father was in the penitentiary, and that he was released therefrom within three years from the commencement of this action. Was this promise sufficient to take the case out of the operation of the statute? It is observed that the testimony nowhere discloses any express promise not to plead the statute of limitations, nor does it show any agreement to postpone the date of payment to any future day. Doctor Dunavant merely states that appellant promised to pay when his father got out of trouble, and that upon that promise he did not sue until after the occurrence of that event. He states further in his testimony that he frequently thereafter demanded payment of appellant. Appellant denied that he ever made this promise to Doctor Dunavant, but says that when payment was repeatedly demanded he merely promised that he would pay as soon as he got able.

The statutes of this State provide that "no verbal promise or acknowledgment shall be deemed sufficient evidence in any action founded on contract whereby to take any case out of the operation of this act, or to deprive the party of the benefits thereof." Kirby's Digest, § 5079.

In the absence of a forbidding statute, an oral promise or acknowledgment will interrupt the statute of limitations; but it is seen from the above that we have a statute on that subject in this State, and, in order "to suspend the statute by promise or acknowledgment, such promise or acknowledgment must be in writing and...