Hayden v. INTERNATIONAL BANKING CORPORATION, 4903.

• Decision Date: 05 May 1930
• Docket Number: No. 4903.,4903.
• Citation: 41 F.2d 107,59 App. DC 313
• Parties: HAYDEN v. INTERNATIONAL BANKING CORPORATION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 313, 41 F.2d 107 (1930)

HAYDEN v. INTERNATIONAL BANKING CORPORATION.

No. 4903.

Court of Appeals of District of Columbia.

Submitted March 3, 1930.

Decided May 5, 1930.

Petition for Rehearing Denied May 29, 1930.

Lucien H. Mercier, Jessie C. Adkins, and Frank F. Nesbit, all of Washington, D. C., for appellant.

L. H. Cake, J. F. Barnard, and P. E. Lesh, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and GORDON, Associate Justice of the Supreme Court of the District of Columbia.

GORDON, Associate Justice of the Supreme Court of the District of Columbia.

This is an appeal from a judgment of the Supreme Court of the District of Columbia on a finding and determination by the court as a matter of law, upon an agreed statement of facts, in an action upon a promissory note in the sum of $7,456.89 and interest, that the appellant within three years before the commencement of said action so acknowledged the indebtedness as to take the case out of the statute of limitations.

On November 15, 1920, appellee held appellant's two demand notes aggregating $6,511.33 on which interest had accrued in the amount of $945.56. Appellant thereupon gave appellee his demand note on that date for the amount due in the sum of $7,456.89, with interest thereon at the rate of 8 per centum per annum.

On August 17, 1926, appellee brought suit on the note and appellant pleaded thereto the statute of limitations. By replication appellee set up that appellant had acknowledged in writing and promised to pay the indebtedness within three years next preceding the commencement of the suit.

The case was submitted below on stipulation as to the facts, which stipulation waived trial by jury; and the submission was made on the one issue, namely, whether the appellant had acknowledged in writing and promised to pay the indebtedness within three years next preceding the commencement of the suit.

The stipulation was to the effect that the several letters, seventeen in number which were thereto attached, were correct copies of the correspondence which passed between the parties; the first two letters being dated 1920, the same year the note was given, and the balance, fifteen in number, being dated from June, 1925, to May, 1926. This correspondence so introduced by stipulation was the only evidence in the case.

The following are the excerpts from the correspondence which appellee claims remove the bar of the statute:

"We enclose herewith our demand note for $7,456.89, dated November 15, 1920, which we will appreciate your signing and returning to us at your earliest convenience.

"This is to cover two demand notes of $6,511.33; and, in addition, interest due of $945.56. * * *" (Letter to appellant November 9, 1920.)

"With reference to your demand note dated November 15, 1920, for $7,456.89 and interest, will you please advise us what the prospects are of your making a substantial payment on account." (Letter to appellant June 5, 1925.)

"We are requested by our New York friends to forward you the enclosed copy of their letter of the 5th June last, to which, they state, no reply has been received, probably on account of the fact that the original may have miscarried. * * *" (Letter to appellant August 20, 1925.)

"I am in receipt of a copy of a letter written me by you under date of June 5th and forwarded by your London Branch, the original having not yet reached me, asking me to advise you what the prospects are of my making a substantial payment on account in connection with your loan to me, amounting to six thousand odd dollars rather than $7,456.89 as quoted in your letter, according to my recollection, secured by Seoul Mining Stock and in reply I beg to say that I am not in a position to do more than abide by the understanding arrived at at the time of the consummation of this loan originally and which was for the paying off of the loan by the application of the entire dividends received from the stock until such time as the loan might be liquidated." (Letter from appellant September 17, 1925.)

"With reference to your letter of September 17, we were much surprised at your statement regarding the payment of your loan. There is, of course, no basis for your contention, which carries its own answer, as no bank would make a loan under such conditions as you name.

"Regarding the amount, you have apparently forgotten you gave a new note which included $1,456.89 interest. * * *" (Letter to appellant October 16, 1925.)

"We have received from our correspondents in New York instructions to take action for the collection of your promissory note in favor of the Fidelity-International Trust Company for $7,456.89. Although the note is a demand note and we understand efforts have already been made by the holder to induce you to pay it, without success, we do not wish to take action without first notifying you that payment is demanded and expected and without giving you an opportunity to call on us with a view to prompt payment. * * *" (Letter to appellant December 28, 1925.)

"You write of a note of mine in favor of the `Fidelity-International Trust Company' and I can only say I know of no transaction on my part with this Company.

"On the other hand the International Banking Corporation does hold a note of mine for approximately the amount you mention * * * and I dare say it is the International Banking Corporation's note meant in your letter — if this is the case I beg to advise you that I am calling upon them today with regard to same. * * *" (Letter from appellant January 4, 1926.)

"With reference to our telephone conversation, I enclose copy of a letter dated November 9, 1920 which will probably refresh your memory in connection with note for $7,456.89." (Letter to appellant January 6, 1926.)

"* * * I am continuing my efforts toward the consummation of a sale of property which, if consummated, will simplify my position considerably.

"In any event I shall call upon you at your office on my return to New York with the object of arranging with you about my note on the best terms possible. * * *" (Letter from appellant January 28, 1926.)

"I have your letter of the 18th instant, asking when you may expect to receive my promised call with regard to my note and in reply I can only say that I shall drop in to see you as soon as I return to the city. * * * But in the meantime I'm working constantly to get my things lined up, so that this is really not time lost. * * *" (Letter of appellant February 23, 1926.)

In determining whether there is an acknowledgment of the indebtedness or a promise to pay the same in writing sufficient to remove the bar of the statute of limitations, this correspondence must be considered as an entirety. Walsh v. Mayer, 111 U. S. 31, 4 S. Ct. 260, 28 L. Ed. 338; 37 C. J. 1127.

This court has uniformly held that an acknowledgment of a debt as a still subsisting personal obligation, as distinguished from a promise to pay, express or implied, is sufficient to avoid the bar of the statute, or, as it is sometimes said, that there is implied in law a promise to pay an acknowledged debt. In Cooper v. Olcott, 1 App. D. C. 123, 130, the court said:

"But it is argued that no specific indebtedness was mentioned or indicated, and that therefore the reference to it was too vague to constitute the foundation of a new promise. There was but one indebtedness. That one indebtedness was specifically and positively ascertained, and reduced into the shape of promissory notes. It was not necessary under such circumstances to specify amounts; for it is a maxim of law, applicable to such a condition of things, that `that is certain which can be rendered certain.'

"It was testified by Olcott, that in a conversation with Hedrick in the year 1888, he (Olcott), with the advice and consent of Cooper, promised to pay to Hedrick on behalf of the firm the money due to him at any time that he should need it, even if they should have to sell...