Cleland v. Hostetter

• Decision Date: 25 February 1905
• Citation: 79 P. 801,13 N.M. 43
• Parties: CLELANDv.HOSTETTER et al.
• Court: New Mexico Supreme Court

13 N.M. 43

79 P. 801

CLELAND

v.HOSTETTER et al.

Supreme Court of the Territory of New Mexico.

Feb. 25, 1905.

Syllabus by the Court.

1. Grounds of demurrer to a reply not set up in the court below cannot be considered in this court. [Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1030, 1244; vol. 39, Cent. Dig. Pleadings, § 1387.]

2. Letters written by a debtor to the attorney for the creditor, in which, referring to the note sued on, the debtor says, “Will pay as soon as I can,” and in which, after offering to pay $100 in compromise, he adds, “It's that or wait until I get it,” is a sufficient admission that the debt is unpaid to revive the cause of action under Comp. Laws, § 2926.

Appeal from District Court, Bernalillo County; before Justice Benjamin S. Baker.

Action by A. W. Cleland, Jr., against Louis Hostetter and others. Judgment for defendants, and plaintiff appeals. Reversed.

Letters written by a debtor to the attorney for the creditor, in which, referring to the note sued on, the debtor says: “Will pay as soon as I can” and in which after offering to pay one hundred dollars in compromise he adds: “It's that or wait until I get it,” constitute a sufficient admission that the debt is unpaid to revive the cause of action under C.L. Sec. 2926.

W. B. Childers and E. L. Medler, for appellant.

J. F. Bonham and F. W. Clancy, for appellees.

POPE, J.

This is a suit instituted in the district court of the county of Bernalillo on February 2, 1903, based upon a promissory note signed by the defendant Louis Hostetter, and made payable to the order of the plaintiff. Defendants answered, setting up the statute of limitations of six years, whereupon plaintiff filed his reply, setting up the following letter as taking the case out of the statute:

“Las Cruces, N. M., 11/27/1901. E. L. Medler, Esq. Albuquerque-Friend Ed: Your letter to hand you can tell Mr. Cleland as I told you, as soon as I get some money I have been expecting I will pay him. I did not get the money I had every reason to expect and so did not settle. As for suit, why, you would not make anything as it is not only outlawed, but I have nothing you can touch even if it was not outlawed, but I do not wish to evade the payment and so will pay when I can. Yours truly Louis Hostetter.”

To this reply the defendants demur upon the grounds that “the alleged promise in writing, of which a copy is filed with said reply, shows upon its face that it is no promise whatever to pay the alleged indebtedness upon which this action is founded, nor is it any such admission that the debt is unpaid as will raise an implication of such a promise.” This demurrer having been sustained, an amended reply was filed as follows:

“Amended Reply.

“Now comes the plaintiff, by W. B. Childers, his attorney, and filed this, his amended reply, to the answer of the defendants, and says:

“(1) That although the said note set up in said amended complaint was dated more than six years last past, and became due and payable more than six years before the bringing of this suit, yet the said defendant Louis Hostetter, within six years prior to the filing of this suit, by admission in writing, admitted that the debt evidenced by said promissory note was unpaid, and promised to pay the same, a copy of which said writings are in words and figures, as follows:

“‘Las Cruces, New Mexico, 8/21/1899. Friend Ed: Yours from Childers & D. to hand, If you recollect I told you I expected to be paid some money & I have never gotten it as yet. I will see what can be done and let you know. Will pay as soon as I can. Yours truly [Signed] Louis Hostetter.’

“‘Las Cruces, N. M. 12/4/1901. E. L. Medler, Esq. Albuq.-Dear S: Yours to hand & I will not give Mr. Cleland a new note & you can sue if you desire, all the good it would do you even if you got a judgment. It is outlawed all the same whether I acknowledged ever owing it or not, but I have no idea doing him although, but never mind, what I will do is I will borrow money & pay him $100.00, $25.00 cash & 10.00 a month until paid & its that or wait until I get it. Yours &c. [Signed] Louis Hostetter.’

“And plaintiff further alleges that at the time of said admission and promises the said E. L. Medler was acting as the attorney and agent of the plaintiff.”

To this amended reply defendants demurred in the same language as in the demurrer to the original reply, which demurrer was sustained. Plaintiff declined to plead further. Judgment was rendered in favor of the defendants, and plaintiff appealed to this court.

The amended reply does not reiterate or adopt by reference as a part thereof the letter of November 27, 1901, set up in the original reply. By filing his amended reply in this form plaintiff would seem to have waived his right to allege error in the ruling on the demurrer to the original reply. Gale v. Toulumne Co., 14 Cal. 25; Kennedy v. Anderson, 98 Ind. 151; Forcheimer v. Holley, 14 Fla. 239; Gale v. James, 11 Colo. 540, 19 Pac. 446; Gale v. Foss, 47 Mo. 276; State v. Simpkins, 77 Iowa, 676, 42 N. W. 516; 1 A. & E. Enc. of P. & P. pp. 624-626 and cases cited. We do not find it necessary to decide this, however, as, in the view which we take of the case, the letter of November 27, 1901, can be disregarded without affecting the result, and we shall confine ourselves in the consideration of this case to determining the sufficiency of the amended reply, which sets up the letters of August 21, 1899, and December 4, 1901.

It is urged by the appellees that the amended reply is not sufficient to obviate the bard of the statute, and the grounds specially presented in the brief as sustaining that position are, first, that there is no allegation in the amended reply that the two letters pleaded refer to the note sued on; second, that, assuming that they do, they do not constitute a promise to pay, or any admission raising the implication of a promise; third, that, even assuming that the letters amount to a promise to pay “as soon as the debtor can,” such promise is conditional, and, there being no allegation of the ability of Hostetter to pay, the reply is insufficient. We are of opinion that the first objection to the amended reply must be overruled, for the reason that it was not made in the court below. The demurrer in the court below was confined in terms to the objection that the letters pleaded showed upon their face that they were neither promises nor admissions within the terms of the statute. That is a very different objection from the contention now made for the first time that there is nothing in the reply to tie these letters to the debt sued on. Had this point been made in the court below, plaintiff could doubtless have amended to meet the objection. In declining to entertain this objection we simply follow the well-recognized rule that objections of this character cannot be considered on appeal unless made in the court below. Code, § 36; Comp. Laws, § 3139; Crabtree v. Segrist, 3 N. M. (Gild.) 495, 6 Pac. 202; Coleman v. Bell, 4 N. M. (Gild.) 21, 12 Pac. 657; Tex., etc., Ry. Co. v. Saxton, 7 N. M. 302, 34 Pac. 532; Neher v. Armijo (N. M.) 66 Pac. 519. We may add further, however, that, had the point been made in the court below, the trial court would, in our opinion, have been amply justified in holding the allegation that “the said defendant Louis Hostetter, by admissions in writing, *** admitted that the debt evidenced by said promissory note was unpaid, and promised to pay the same,” to be a sufficient averments that the writings which follow in the pleading have reference to the note in question.

Coming now to the other grounds urged by the appellees, are the two letters set up in the amended reply sufficient to toll the statute? The statute (Comp. Laws, § 2926) provides that “causes of action founded upon contract shall be revived by an admission that the debt is unpaid as well as by a new promise to pay the same,” such admission or new promise to be “in writing signed by the party to be charged therewith.” We have had occasion recently in the well-considered case of Reymond v. Newcomb, 10 N. M. 151, 61 Pac. 205, to point out the fact that our statute of limitations is taken from the state of Iowa. In that case this court reviewed the various Iowa decisions, and held that the words, “I shall sell our cattle the first chance. I am tired of the business, and want to pay off that mortgage,” were sufficiently clear and unqualified to constitute an admission that the debt secured by the mortgage was unpaid. The language here used is, in our judgment, an admission equally clear and unqualified. The effect of the letter of August 21, 1899, is that the defendant says he has received a letter from the attorneys representing the plaintiff; that, as he had previously told them, he had expected to be paid some money, which he had never gotten, but that he would see what could be done, and let counsel know. He then adds, “Will pay as soon as I can.” We are unable to see in what respect this letter falls short of an admission that the debt was unpaid. The debtor acknowledges the receipt of the letter as to this debt. He, in effect, accounts for his failure to attend to the matter sooner on the ground that some money he expected had never been received. He says he will see what can be done, and let counsel know. He promises to pay as soon as he can. These statements are inconsistent with any other theory than that he admits that the debt is just and unpaid, and proposes to pay it as soon as he can. This letter is complete in itself, and, even if the later letter of December 4, 1901, be considered a modification of his former position, that cannot destroy the effect of his first admission. We are of opinion, however, that this letter does not evidence any recession from his former position that the debt is unpaid. True, he declines to give a new note, and indicates that, if judgment were secured on the...