Morrell v. Ferrier

• Decision Date: 04 December 1883
• Citation: 1 P. 94,7 Colo. 22
• Court: Colorado Supreme Court
• Parties: ANNA M. MORRELL v. SAMUEL T. FERRIER.

1 P. 94

7 Colo. 22

ANNA M. MORRELL v. SAMUEL T. FERRIER.

Supreme Court of Colorado

December 4, 1883

Error to the district court of Fremont county.

John D. Freeman and Stuart Bros. for plaintiff in error.

Macon & Cox, for defendant in error.

No briefs were filed in this case on the part of the defendant.

STONE J.

Plaintiff brought suit, November 22, 1881, against the defendant upon a promissory note, of which the following is a copy:

'$2,500.

JANY 1, 1866.

'Three years after date we promise to pay to the order of Mrs. Anna Maria Morrell twenty-five hundred dollars, at the office of Tweed & Sibley, No. 40 Walnut St., Cincinnati. Value received.

'SAM T. FERRIER,

'GEO. E. FERRIER,

'THOMAS FERRIER.'

The complaint averred that the note was given for money loaned by plaintiff to defendant; that there was a verbal agreement for interest at 10 per cent. per annum from date until paid; and that the accruing interest thereon had been paid up to April 1, 1871.

Defendant pleads-- First, the general issue; second, that the cause of action accrued without the state; and, third, the statute of limitations.

To the plea of the statute of limitations the plaintiff replied, setting up a new promise in writing, which was contained in a letter from the defendant to the plaintiff, of which letter the following is a copy: 'DELPHI, IND., NOV. 24, 1876.

' Mrs. A. M. Morrell; Cincinnati, Ohio:

'I received a letter from you a few days ago about your money. I had written Uncle Tweed some time ago about it, and supposed he had written to you. I sold one of my farms some time ago and will have money coming in in February, WHEN I EXPECT TO PAY YOU ALL. Until then I do not see how I can pay you, as times are very close here and money is hard to get. Our crops have not been good for two years, consequently I have but little to make money out of until my notes come due.

'I am sorry I have not been able to pay your interest as it came due, but will pay you interest on what is unpaid, so as to make it all right.

'Please leave the note with Mr. Sibley, and let him figure it all up, send me the amount, and if nothing happens I will send him draft for it in February.

Very respect.,

SAM. T. FERRIER.'

The cause was submitted to the court for trial without the intervention of a jury, upon the pleadings, the note, and the letter, without other evidence, and upon consideration thereof the court found for the defendant and rendered judgment accordingly.

The only question for us to consider is the sufficiency of this letter as evidence tending to prove the new promise relied on to take the case out of the statute of limitations.

The letter contains an unequivocal acknowledgment of an indebtedness from defendant to plaintiff, and a clearly implied promise to pay. As to its reference to the particular indebtedness evidenced by the promissory note in suit, we think this is sufficiently indicated prima facie. The note is made payable at the office of 'Tweed &amp Sibley,' and the defendant in his letter refers to 'Uncle Tweed' in connection with this indebtedness, and also refers to 'Mr. Sibley,' requesting the plaintiff to 'leave the note with Mr. Sibley, and let him figure it all up, send me the amount, and if nothing happens I will send him draft for it in February.' The sentence preceding the foregoing refers to the interest, which defendant regrets not having paid in full, but promises to pay, and the figuring which he requests Mr. Sibley to do evidently refers to computing the interest so as to ascertain the amount of principal and interest due on the note which is made payable at Tweed & Sibley's, and for which ...