Miller v. Kinsel

• Decision Date: 12 December 1904
• Citation: 20 Colo.App. 346,78 P. 1075
• Parties: MILLER v. KINSEL.
• Court: Colorado Court of Appeals

78 P. 1075

20 Colo.App. 346

MILLER v. KINSEL.

Court of Appeals of Colorado

December 12, 1904

Error to Otero County Court.

Suit by J.J. Kinsel against O.W. Miller and others. Judgment of the county court affirming a judgment of a justice of the peace in favor of plaintiff, and O.W. Miller brings error. Affirmed.the note in suit, is established as a fact in the case, thought the defendant denied having made the statement.

Thos. R. Hoffmire, for plaintiff in error.

O.G Hess, for defendant in error.

MAXWELL J.

This action is before us upon a writ of error to the county court of Otero county, where judgment was rendered against plaintiff in error, upon the verdict of a jury, on an appeal from a judgment of a justice court, against plaintiff in error and two others. The action was upon a joint and several promissory note. Defense, statute of limitations. To avoid the bar of the statute, plaintiff testified that shortly prior to the commencement of the action Miller said to him "We owe it, and I will have to pay it." It is conceded that the reference is to the particular promissory note in suit. Miller denied having made any such statement. The jury found the issue in favor of plaintiff, and we are bound by the verdict.

The law is well settled that a debt barred by the statute of limitations may be revived (1) by a new promise to pay the debt; (2) that such new promise may either be express or implied; (3) that an implied promise is created by a clear explicit, and unequivocal acknowledgment of the debt. Adams v. Tucker, 6 Colo.App. 393-400, 40 P. 783; Thomas v. Carey, 26 Colo. 485-490, 58 P. 1093.

In Morrell v. Ferrier, 7 Colo. 22, 1 P. 94, Ferrier wrote a letter to Mrs. Morrell, which contained this language: "I sold one of my farms some time ago, and will have money coming in in February, when I expect to pay you all." Commenting upon which the court said: "The letter contained an unequivocal acknowledgment of the indebtedness of defendant to plaintiff, and a clearly implied promise to pay." The language under consideration here is a more unequivocal, clear, and explicit acknowledgment of the debt than that quoted from the Morrell Case. The language here relied upon, "We owe it," is such a clear, explicit, and unequivocal acknowledgment of the debt as an existing obligation that the law will imply therefrom a new promise to pay, and while the other language used, "and I will have to pay it," may not have the force and effect of an express promise, it certainly contains nothing negativing the presumption of an intention to pay.

It is said that this language should have been stricken out, and not allowed to go to the jury, as it was a mere casual and loose statement of Miller, made while trying to effect a compromise. The record discloses that the parties had two interviews touching the matter. At the first the amount due on the note, a computation of the amount due made by Miller, the pendency of a suit on the note, and other matters, were discussed. At this interview the acknowledgment of the debt was made. The following day the second interview took place, during which Miller made several propositions of settlement, none of which were accepted. Thus it appears that the acknowledgment was unconnected with and unaccompanied by any unaccepted proposition of settlement or compromise, and is therefore without the rule that offers of this kind are not competent evidence. No error was committed in overruling the motion to strike out the testimony.

Error is assigned upon the nonjoinder of Charles Davis as a defendant in the county court, and proceeding to trial without his being summoned. Davis and O.W. and S.C. Miller were the defendants in the justice court against whom judgment was rendered. The Millers prosecuted an appeal to the county court, under the provisions of Mills' Ann.St § 2684. Section 2685, Id., provides that, when an appeal is taken by one of several parties from...