Marcum's Admx. v. Terry

• Decision Date: 09 January 1912
• Citation: 146 Ky. 145
• Parties: Marcum's Admx. v. Terry.
• Court: Kentucky Court of Appeals

146 Ky. 145

Marcum's Admx. v. Terry.

Court of Appeals of Kentucky.

Decided January 9, 1912.

Appeal from Breathitt Circuit Court.

KASH & KASH for appellant.

REDWINE & PATTON for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Affirming.

In 1902, appellee, Charles Terry, employed J. B. Marcum, an attorney-at-law, to institute contest proceedings against Ed. Callahan for the office of sheriff of Breathitt County. Marcum conducted the contest. The election was declared void, and neither Terry nor Callahan was given the office. Marcum died during the year 1903. His widow, Abrelia Marcum, qualified as his administratrix. After setting out the employment and the agreement of Terry to pay her husband a reasonable fee for his services and stating that $500 was a reasonable fee, appellant as administratrix of her husband, after admitting several credits, among them an item of $42.15, for taxes paid by Terry for the year 1901, brought this action to recover an alleged balance due of $381.85. Among other defenses Terry pleaded the statute of limitations. By amended petition, appellant declared on a new promise made December 6th, 1909, and within five years before the institution of the action. At the conclusion of appellant's evidence, the court directed a verdict in favor of appellee. To review the propriety of this ruling this appeal is prosecuted.

The only evidence of the alleged promise of December 6th, 1909, is that of appellant and R. A. Hurst. This evidence we quote in full. Mrs. Marcum testified as follows:

"The last payment that was made to me by defendant on this fee was made on January 7, 1905. Afterwards, and on December 6, 1909, I had a conversation with the defendant, Charles Terry, in Jackson about this fee for services. He said he would give me the tax receipt on which he owed, which was for the year 1901, which was $42.15. He had been the sheriff of Breathitt County for that year, and held the tax receipt against the estate for that year, and had never given us the receipt. He told me on that day, December 6th, 1909, he would give me the receipt. I got a blank receipt from Sheriff Crawford, and he wanted me to give him a receipt in full, and I told him I would law him; and he said, `Law, and I will bring in enough to beat you;' that he would give me this tax receipt on what he owed. He said that he had no blank receipts, and I went to Mr. Crawford, who was then sheriff, and got a blank tax receipt, and took it to Mr. Terry, and he started to write the receipt and dated it. He then stated to me that I must accept the receipt in full for services rendered by my husband, and I told him I would not do this. He then refused to write the receipt, and still holds the tax receipt against the estate."

Mr. R. A. Hurst, an attorney-at-law, testified as follows:

"I was present in Jackson, Kentucky, and heard a conversation between Mrs. Marcum, the plaintiff, and the defendant, Charles Terry. The defendant agreed to give Mrs. Marcum a tax receipt on what he owed, and Mrs. Marcum went to get a blank receipt and I went away. I don't know whether or not the receipt was written. This was on December 6, 1909. This was on the day Mrs. Marcum executed a bond as guardian."

It will be seen from the evidence above quoted that appellee did not promise to pay the debt, but it is insisted by counsel for appellant that there was such an acknowledgment as to imply a promise to pay. In the early case of Bell v. Rowland's Admrs., Hardin, 301, decided in 1908, after criticising the English Courts for going too far in holding "the slightest acknowledgment" sufficient, the court said:

"Upon the whole, we are of the opinion that the only safe rule that can be adopted, capable of any reasonable degree of certainty, is, that in order to take the case out of the statute of limitations, an express acknowledgment of the debt, as a debt due to that time (coupled with the original consideration), or an express promise to pay, must be proven to have been made, within the time prescribed by the statute. And we are of the opinion that the acknowledgment of David Rowland, deceased, proved upon the trial, as stated in the bill of exceptions, were not such express acknowledgments, or promise, as could by law, take the case out of the operation of the statute.

"The utmost extent of his acknowledgment was, `That he had...