Custy v. Donlan

• Decision Date: 22 May 1893
• Citation: 159 Mass. 245,34 N.E. 360
• Parties: CUSTY v. DONLAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 245

34 N.E. 360

CUSTY v. DONLAN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 22, 1893

COUNSEL

L.T. Trull and F.N. Wier, for plaintiff.

W.H Anderson, for defendant.

OPINION

LATHROP J.

The only question in this case is as to the correctness of the ruling of the justice who tried the case in the superior court, that there was sufficient evidence to take the first three items of the account out of the statute of limitations Pub.St. c. 197, § 1. In considering this question we shall lay aside the oral evidence of a promise to pay, which, under Id., § 15, was not admissible. Sumner v. Sumner, 1 Metc. (Mass.) 394, 396; Chace v. Trafford, 116 Mass 529. There remains the writing signed by the defendant, and delivered to the plaintiff on the day of its date, together with the fact that no part of the money lent had been repaid. This writing, omitting the signature and the date, is in these words: "Rec'd of Patrick J. Custy the sum of seven hundred dollars at various times to date, which is hereby acknowledged." We are met at the out set of this inquiry by the question of the meaning of this writing. If it is to be construed as merely an acknowledgment that at certain times in the past, the signer had borrowed money of the plaintiff, it would not be sufficient, for there must be an acknowledgment of a present indebtedness. We are of opinion that the words "which is hereby acknowledged" have a broade meaning. The word "which" refers to the word "sum." The acknowledgment is at acknowledgment as of the date when made. The language used is to be construed as if it were: "I have received of Patrick J Custy the sum of seven hundred dollars at various times to date, which sum of money I now acknowledge." If then there is the unqualified acknowledgment of an existing debt, nothing more it needed, as the acknowledgment was made within six years before the bringing of the writ. It is undoubtedly true, as said by Chief Justice Morton in Krebs v. Olmstead 137 Mass. 504, that "it is not the acknowledgment which renews or revives the debt The question is whether there has been a new promise within six years, of which the acknowledgment is evidence more or less controlling." But it is also true that an unqualified acknowledgment of a debt as an existing debt is conclusive. This is conceded by all of the authorities in England, whence we derive our statute on this subject, and in this commonwealth, from the case of Tanner v. Smart, 6 Barn. & C. 603, to the present day. The difficulty has arisen in cases where the debtor went beyond an acknowledgment, and used language which rendered it doubtful whether a promise to pay could fairly be implied. Thus, in Tanner v. Smart, Lord Tenterden, C.J., said: "Upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay may, and ought to be, implied." The law on this subject is thus stated in Philips v. Philips, 3 Hare, 281, 299, by Vice Chancellor Wigram: "The legal effect of an acknowledgment of a debt barred by the statute of limitations is that of a promise to pay the old debt, and for this purpose the old debt is a consideration in law. In that sense, and for that purpose, the old debt may be said to be revived. It is revived as a consideration for a new promise. But the new promise, and not the old debt, is the measure of the creditor's right. If a debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consideration; but if the debtor promises to pay the old debt when he is able, or by installments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him." In Mitchell's Claim, L.R. 6 Ch.App....