Denny v. Marrett

• Decision Date: 03 August 1882
• Citation: 29 Minn. 361
• Parties: GEORGE W. DENNY <I>vs.</I> THOMAS B. MARRETT
• Court: Minnesota Supreme Court

Page 361

29 Minn. 361

GEORGE W. DENNYvs.

THOMAS B. MARRETT

Supreme Court of Minnesota.

August 3, 1882.

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., presiding, overruling a demurrer to the complaint. The case is stated in the opinion.

J. J. Egan, for appellant.

E. G. Rogers, for respondent, cited, as to what constitutes a sufficient acknowledgment, Lee v. Wyse, 35 Conn. 384; Blakeman v. Fonda, 41 Conn. 561; Penley v. Waterhouse, 3 Iowa, 418; Collins v. Bane, 34 Iowa, 385; Bayliss v. Street, 51 Iowa, 627; Buffington v. Davis, 33 Md. 511; Wilcox v. Williams, 5 Nev. 206; Johns v. Lantz, 63 Pa. St. 324; Leigh v. Linthecum, 30 Tex. 100; Whitcomb v. Whiting, 1 Smith's Lead. Cas. 703.

DICKINSON, J.

The defendant was the maker of a promissory note to the plaintiff. After the statute of limitations had run against the note, the debtor addressed two written communications to the creditor, which refer to the debt in question. The only question is whether these instruments are sufficient to take the note out of the operation of the statute of limitations. One of the writings is as follows:

"I have had two communications from C. M. McCollough, Esq., in regard to our business affairs. At present, George, I am not able to offer any settlement. It will not be necessary for you in the future to employ an attorney to arrange this matter. When that is done it will be done with you direct, and not through any third party. I am very sorry indeed, George, that I am not amply able to pay you but hope on, dear boy. Hope springs eternal within the human breast; and without it we could not live.

                            "Very truly yours,                    T. B. M."
                

The other communication is in these words:

"I will now write you and express my deep regret at the annoyance our business relations has caused you. In fact, the note which you have paid and hold is not my legitimate debt, but our friend Sam B. Foard, Jr. In explanation, S. B. F. and myself had some dealings, in which he gave me his note for $225, I think. I had the same discounted. It was never paid, but renewed once or twice, and the last time the bank refused to renew without a new and more responsible indorser, and, inasmuch as I was unable to pay it, I got you to indorse it with me. Now, George, I want you to present these facts to Sam, and try to get a compromise with him. I will try to do a portion of it, but, in fact, the matter belongs to him exclusively. After you have interviewed him, please write me the result.

                             "Very truly yours,                 T. B. MARRETT."
                

The statute of limitations does not operate to raise a presumption of payment, but is a statute of repose; hence, to revive a legal obligation once terminated by the effect of the statute, requires something more than a mere acknowledgment that a past debt is still unpaid. In Whitney...