Krebs v. Olmstead
| Decision Date | 08 September 1884 |
| Citation | 137 Mass. 504 |
| Parties | Francis H. Krebs v. J. M. Olmstead |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suffolk. Contract for professional services rendered by the plaintiff to the defendant in February and March, 1876. Writ dated December 23, 1882. Answer, the statute of limitations. Trial in the Superior Court, before Brigham, C. J., who ruled that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.
Exceptions overruled.
J. W Keith, for the plaintiff.
H. E Swasey, for the defendant.
The general rules of law applicable to this case are well settled in this Commonwealth. As the plaintiff's original cause of action accrued more than six years before his suit was commenced, it is incumbent upon him, in answer to the defence of the statute of limitations, to prove a new promise in writing, either absolute or conditional, by the defendant within six years. This he may do by showing a direct and express written promise by the defendant to pay the debt made within six years, or by showing an acknowledgment in writing by the defendant that the debt was due, made under such circumstances and in such terms as reasonably and by fair implication to lead to the inference that the debtor intended to renew his promise of payment, and thus make a new and continuing contract. But it is not enough to prove an admission of the debt, if it is accompanied by circumstances which repel such inferences, or leave it in doubt whether the debtor intended to make a new promise.
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. Pub. Sts. c. 197, § 15. Bangs v. Hall, 2 Pick. 368. Gardner v. Tudor, 8 Pick. 206. Bailey v. Crane, 21 Pick. 323. Penniman v. Rotch, 3 Met. 216. Roscoe v. Hale, 7 Gray 274. Weston v. Hodgkins, 136 Mass. 326.
The principal difficulty in cases of this class is in applying these principles to the facts of each case as it arises; and in the performance of this duty, as the facts of each case usually vary from those of all others, previous adjudications are not of great assistance to us.
In the case at bar, the plaintiff, within six years before his suit was brought, wrote to the defendant, asking him to send his note for the amount of the plaintiff's account, payable at such time as was most convenient to the defendant. In reply, the defendant wrote: ...
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Westminster Nat. Bank v. Graustein
...and this unaccompanied by any evidence showing a determination not to pay.’ Barnard v. Bartholomew, 22 Pick. 291, 293;Krebs v. Olmstead, 137 Mass. 504. ‘It is a settled principle that in order to avoid the statute of limitations there must be either a new express promise to pay, or one whic......
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Westminster National Bank v. Ida S. Graustein
...and this unaccompanied by any evidence showing a determination not to pay." Barnard v. Bartholomew, 22 Pick. 291, 293. Krebs v. Olmstead, 137 Mass. 504 . "It is settled principle that in order to avoid the statute of limitations there must be either a new express promise to pay, or one whic......
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... ... Hershman, 82 Pa. St. 83; Miller v. Baschore, 83 ... Pa. St. 356; Sigourney v. Drury, 14 Pick. 387; ... Weston v. Hodgkins, 136 Mass. 326; Krebs v ... Olmstead, 137 Mass. 504; Ayers v. Richards, 12 ... Ill. 146; Norton v. Colby, 52 Ill. 198; Carroll ... v. Forsyth, 69 Ill. 127; Wachter v ... ...
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Stewart v. Forman
...liable and willing to pay. Pierce v. Merrill, 79 Am. St. Rep., 63. See also Connecticut Trust, etc., Co. v. Wead, 172 N.Y. 497; Krebs v. Olmstead, 137 Mass. 504. It not the acknowledgment which renews or revives the debt. The determining question must be whether there has been a new promise......