Johnston v. Hussey

• Decision Date: 01 February 1897
• Citation: 36 A. 993,89 Me. 488
• Parties: JOHNSTON v. HUSSEY.
• Court: Maine Supreme Court

36 A. 993

89 Me. 488

JOHNSTON

v. HUSSEY.

Supreme Judicial Court of Maine.

Feb. 1, 1897.

(Official.)

Exceptions from supreme judicial court. Lincoln county.

Assumpsit by Nettie S. Johnston against Norris H. Hussey, executor of Job Hussey, deceased. There was verdict for plaintiff, and defendant took exceptions. Sustained.

W. H. Hilton, for plaintiff.

W. H. Fogler and G. B. Sawyer, for defendant.

EMERY, J. This was an action by a married daughter against her father to recover for supplies furnished her father and mother. The action was prima facie barred by the statute of limitations pleaded by the defendant. Within six years before the date of the writ, however, the husband of the plaintiff wrote out a statement of the supplies and services furnished, as set out in the account annexed to the writ. This statement was in the form of a letter written to the brother of the plaintiff, and was signed by the writer. Under the signature of the writer was added the signature of the father. Under their signatures was a statement, signed by one Hattie M. Johnston, to the effect that the father acknowledged the accounts as valid, and the statements true. It is to be noticed, however, that this latter statement was not signed by the father. His signature only applied to the letter itself. The presiding justice ruled that the letter signed by the father was sufficient to remove the bar of the statute of limitations, and the jury found for the plaintiff.

After much and varying judicial exposition, statutes of limitations are now almost universally held to be statutes of repose, to be interpreted and applied to effect that purpose. Any act or declaration interposed to defeat or postpone that effect is to be closely scrutinized. The legislature of this state has enacted that no acknowledgment or promise by the defendant shall defeat or postpone the operation of the statute "unless the acknowledgment or promise is express, in writing, and signed by the party chargeable thereby." Rev. St. c. 81, § 97. The acknowledgment must be in writing,— must be contained and found in the writing. It must be an "express" acknowledgment also. It is not enough that the original promise is proved. The new promise or acknowledgment must be proved to have been expressly made, and the proof of this must be in the signed writing. The acknowledgment must also at least savor of a promise to pay. It is not enough that a jury could, or probably would, infer a new promise from the terms of the acknowledgment. The terms must be such that the court itself will infer a new promise from them. The most profuse acknowledgment of gratitude, or of any other moral obligation, for articles or services furnished will not do. The acknowledgment must be of an existing legal cause of action. It must show a recognition of a legal obligation, and an intention, or at least a willingness, to be bound by it. It must be an acknowledgment of a legal debt, —a legal duty. A mere acknowledgment that a cause of action once existed is not enough. A full acknowledgment of all the facts alleged by the plaintiff will not suffice unless there appears also a recognition of the legal duty. In fine, in the words of the usual replication to the plea, it must appear from the writing alone that "the defendant promised within six years." Wood, Lim. Act. pp. 128, 129, 139, and notes; Perley v. Little, 3 Me. 97; Porter v. Hill, 4 Me. 41; Miller v. Lancaster, Id. 159; McLellan v. Allbee, 17 Me. 184; Warren v. Walker, 23 Me. 453; Lunt v. Stevens, 24 Me. 534; Perry v. Chesley, 77 Me. 393; Bangs v. Hall, 2 Pick. 368; Barnard v. Bartholomew, 22 Pick. 291-293; Weston v. Hodgkins, 136 Mass. 326; Clementson...