Chambers v. Rubey

• Decision Date: 31 October 1870
• Citation: Chambers v. Rubey, 47 Mo. 99 (Mo. 1870)
• Parties: CHAMBERS, SURVIVING PARTNER, ETC., Plaintiff in Error, v. THOMAS RUBEY, Defendant in Error.
• Court: Missouri Supreme Court

47 Mo. 99

CHAMBERS, SURVIVING PARTNER, ETC., Plaintiff in Error,

v.THOMAS RUBEY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Sixth District Court.

T. J. C. Fagg, for plaintiff in error.

To say that the acknowledgment must be one of a subsisting debt which the party is ready and willing to pay, is to say that the acknowledgment must in terms also show a promise to pay. If that be so, then there is really no distinction between an acknowledgment and a promise. The statute (Gen. Stat. 1865, p. 749, § 28) evidently intended to make such a distinction; and the true statement of the rule is that it must be such an acknowledgment as does not rebut the presumption of an intention to pay. (41 Mo. 264.)

It can not be said that defendant's letter was an offer to compromise. There was no dispute between the parties as to the amount due, nor as to the terms of payment. No question was raised as to the liability of defendant; and all this seems to be clear and distinct from the terms of the letter itself. There is a condition attached to the surrender of the amount of money which Rubey says he has in his hands and proposed to divide among his creditors; but how does that affect the acknowledgment of his indebtedness? Suppose his proposition is not accepted by his creditors and the condition still remains unperformed. What does he say will be his course in reference to the matter? He does not say that in that event he will rely upon the bar of the statute to protect him, nor does he in any way intimate that he does not intend to pay the debt. The promise is without qualification, and not made dependent upon any conditions whatever. (See generally, in relation to the case at bar, Cowan v. Magauran, Wall. C. C. 66; Arnold v. Dexter, 4 Mass. 122; Bank of Alexandria v. Clarke, 2 Cr. C. C. 464; Rhodes v. Hadfield, id. 566; Reynolds v. Calvert, 3 Cr. C. C. 211; Young v. Wetzell, id. 359; Archer v. Poor, 5 Cr. C. C. 542; Wetzell v. Bussard, 11 Wheat. 309; Thompson v. Peters, 12 Wheat. 565; Bell v. Morrison, 1 Pet. 351; Kampshall v. Goodman, 6 McL. 189; Davis v. Van Zandt, 2 Cr. C. C. 208; Danforth v. Culver, 11 Johns. 146; Johnson, Adm'r, v. Beardslee, 15 Johns. 3; Martin v. Williams, Ex'r, 17 Johns. 330; Carr's Adm'r v. Hurlburt's Adm'r, 41 Mo. 264.)

Henderson & Dyer, for defendant in error, cited 2 Pick. 368; 15 Johns. 511; 8 Cranch, 72; 1 Serg. & R. 176; 9 Serg. & R. 128; 11 Whart. 309; Hardin, Ky., 301; 2 Bibb, 284; 3 Bibb, 269; 40 Mo. 268.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff brought his action in the Louisiana Court of Common Pleas, on the 21st day of April, 1869, on account of goods sold to the defendant in April, 1856. The defense was the statute of limitations. Replication, a new promise by which the case was taken out of the statute, etc.; upon issue joined, judgment was given for the defendant.

The writing by which the bar of the statute was sought to be avoided was a letter written by the defendant to the plaintiff, dated March 3, 1866, in which he says: “By dint of hard labor for the last few years, I have saved, besides supporting my family, one thousand dollars, and I propose giving it all up to my creditors--that is, the creditors of Lea & Rubey--to be equally distributed between them, provided they will entirely release me from further obligations. I have just heard from all the creditors except yourselves, and all have agreed to the proposition; and now I extend it to you for your decision, hoping you will answer immediately. Most of the creditors have judgments. If the proposition is agreed to by all parties, I will surrender it all; otherwise it would be useless.”

The question is whether this is sufficient, under a just and proper construction of the statute, to remove the bar. In the case of Carr's Adm'r v. Hurlburt's Adm'r, 41 Mo. 264, it was said that 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. But if the acknowledgment was accompanied with conditions or circumstances which repelled or rebutted the presumption of a promise or intention to pay, or if the expressions used were vague, equivocal, or ambiguous,...