Leak v. Elliott

• Decision Date: 31 August 1836
• Citation: 4 Mo. 446
• Parties: LEAK v. ELLIOTT.
• Court: Missouri Supreme Court

4 Mo. 446

LEAK

v.ELLIOTT.

Supreme Court of Missouri.

August Term, 1836.

APPEAL FROM RALLS CIRCUIT COURT.

WRIGHT and WATKINS, for Appellant. We maintain 1st. The court erred in giving the first instruction asked by the defendant. We hold the law to be, that a conditional promise or acknowledgment, may take the case out of the operation of the statute, if the condition be performed or complied with. See 11 Wheaton 309; 2 Con. R. p. 461. 2nd. We maintain that the 2nd instruction ought not to have been given, because the doctrine laid down in it, applies only to the admissibility of the testimony. The testimony was received and not objected to by the defendant, and its effect afterwards, could not thus be destroyed. 3rd. We maintain that the 1st instruction asked by the plaintiff, was improperly refused. See 2 Starkie, p. 895; 2 Con. R. 461. 4th We maintain that the 3rd instruction asked by the plaintiff was improperly refused. Because the facts set forth in it, would have at any time authorized the plaintiff to bring an action for money had and received to recover back the money paid upon the implied assumpsit raised by law, although no promise was given; and because it is absurd to require more to revive an obligation, than was necessary to create it. The defendant admits the facts from which his legal liability arises, to wit: the reception of the money. And he attempts to discharge the obligation by setting up a parol contract, which is void at law. 5th. We maintain that the court erred in overruling the motion for a new trial. The verdict should have been for the plaintiff, upon the ground before stated; and because the statute of limitations does not run in favor of him who obtains money by fraudulent means, as the defendant did in this case.

CHAMBERS, for Appellee. The evidence preserved on the record, shows the case to be this: About sixteen years before the bringing of the action, Elliott sold Leak a tract of land in Kentucky, for $200, and put Leak into possession of it, but no instrument of conveyance was ever executed. Leak surrendered his possession to some one having a counter claim, and in 1834, 16 years after the original transaction, applied to Elliott for a settlement of the matter. Upon that application and attempt to arrange the difficulty, Elliott stated that Leak had paid him the $200, and that he then was and ever had been ready to make him a deed for the land: but Leak refused to take the deed, unless Elliott gave additional security for the title. The first question presented for this court is: does the acknowledgment of Elliott take the case out of the statute of limitations? 1st. I contend, there is no express promise to pay any debt. 2nd. That there is no acknowledgment within the five years of a real subsisting debt, upon which the law would raise a promise to pay--6 Con. Rep. 322 and notes; 2 Starkie. 895, note 1; same 899; 4 Mo. R. 100; 2 Cond. Rep. 460, note. The defendant Elliott, never at any time acknowledged that he owed the plaintiff that sum of money; nor did he at any time offer to pay it. His acknowledgment is, that he had received the money upon a contract for the sale of lands, and that he was ready to make the deed. Here is no evidence of intention to pay, or acknowledgment of the obligation of the debt; but evidence directly to the reverse: by that he intended to make a deed, and fully comes within the law; which is this: “If the acknowledgment is accompanied by any circumstances or expressions, which repel the idea of a willingness or intention to pay, no implied promise is created, and the debt is not revived.” See Angell on Limitations, 247. The whole conversation with every witness, shows an unwillingness to pay, but a determination to do another and distinct thing.--19 Eng. Com. Rep. 98, in point.

But it is said that he acknowledged the existence of a parol contract for the sale of lands; and a readiness to perform the contract; and that this acknowledgment revived the original contract, and the law raises the presumption of a promise to pay. To this I object. 1st. The testimony preserved on the record does not show in what manner the original contract was evidenced, whether by parol or writing. It only says that no deed was executed to the plaintiff: and that he had no writing to show at the time of making the acknowledgment. 2nd. If the contract was by parol, still it was binding, and could have been enforced in equity. And this cuts off the right of the plaintiff to recover back the purchase money. The plaintiff having been put into possession and paid the purchase money under the contract, could have compelled its execution.--See Roberts on Fraud 147-8.

But even admitting that the debt was properly revived, still the admissions of the defendant were properly disregarded by the jury, for they were obtained upon an attempt to compromise, and therefore should have been disregarded, for the defendant was evidently entrapped into them. See 2...