Morris v. Carr

• Decision Date: 09 December 1905
• Citation: 91 S.W. 187
• Parties: MORRIS v. CARR.
• Court: Arkansas Supreme Court

91 S.W. 187

MORRIS v. CARR.

Supreme Court of Arkansas.

December 9, 1905.

Appeal from Circuit Court, Benton County; John N. Tillman, Judge.

Action by T. G. Carr against R. S. Morris. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is a suit by appellee against appellant on a promissory note for $500, with interest at 10 per cent. from date until paid. The note was dated October 15, 1896, and was due 12 months after date. The complaint alleged that nothing had been paid on the note. The answer set up want of consideration and the statute of limitations. The latter defense alone is urged here. The cause was tried by the court who found the following:

"(2) That the note sued on was executed by defendant at Siloam Springs, Ark., October 15, 1896, for the sum of $500, payable to the plaintiff, T. G. Carr, 12 months after its date, and bearing 10 per cent. interest per annum from its date until paid; that the same has been lost or mislaid by the plaintiff, but that it had never been assigned or transferred by him; that he is still the owner thereof; that the same is past due; that no payments have been made thereon; and that there is now due thereon the principal sum of $500 and the sum of $347.90 interest, making a total of $847.90 now due.

"(3) The court further finds: That the plaintiff who lived in New Sharon, the state of Iowa, about the 10th of October, 1898, wrote a letter to defendant, who lived at Siloam Springs, Ark., inclosing for collection a small note against another party, and making inquiry of defendant as to whether he desired to pay off the note in question or use the money another year. That in answer to said letter defendant wrote plaintiff on the 12th day of October, 1898, the following letter: `Siloam Springs, Ark., Oct. 12, 1898. T. G. Carr, New Sharon, Iowa — Dear Sir: We received yours with one note. Our charges on small notes like this one we charge ten cents for collection and ten cents for a draft which would cost you 20 cents each if they have to be collected separately which I believe is the case. I will use the money another year. R. S. Morris.' That shortly prior to December 18, 1899, the plaintiff again wrote to the defendant a letter, either inclosing a note on one Ford for collection or making inquiry about it, and also making inquiry as to whether the defendant wished to pay off the $500 note in question, or use the money another year. That on December 18, 1899, the defendant wrote plaintiff in answer to said letter the following letter: `Siloam Springs, Ark., Dec. 18th, 1899. T. G. Carr, New Sharon, Iowa. I have your letter of December 11th. Mr. Ford is perfectly good. I will have my assistant cashier to collect the note and remit. I will retain the money for another year. Things are all right down here. All well. R. S. Morris, Cashier. When will my interest become due, and how much is it?' That shortly prior to October 20, 1902, plaintiff wrote defendant another letter, asking him to pay $125 on said note, and in answer thereto defendant, on October 20, 1902, wrote plaintiff the following letter: `Siloam Springs, Ark., Oct. 20th, 1902. T. G. Carr, New Sharon, Iowa. Your letter to hand. I understand that you need $125. Send your note to the Bank of Siloam for to be fixed. R. S. Morris.' The court finds that plaintiff, at the time these letters were written, held no other obligation of the defendant than the note sued on, and that the expression in the letter of October 12, 1898, `I will use the money another year,' and the following in the letter of December 18, 1899, `I will retain the money for another year,' and `When does my interest become due, and how much is it?' and the entire letter of October 20, 1902, referred to the note sued upon, and were so understood by both parties at the time. The court further finds these letters written by the defendant were not accompanied by anything negativing the presumption of intention to pay the debt."

Upon these findings of fact the court declared the law to be that these several letters, written by defendant to plaintiff, constituted unequivocal unconditional acknowledgment of the obligation sued on as an existing obligation of the defendant at the time; that by their terms they imported an intention and willingness to pay the same, and that the law implies therefrom a promise to pay the same; and that the statute of limitation began to run from the time of said acknowledgment, and plaintiff's cause of action was brought within five years from the date of each of these acknowledgments, and was not barred by the statute of limitation, and plaintiff is entitled to recover. The court rendered judgment for the appellee in the sum of $870.00, and for interest on same, from the date of the judgment until paid, at the rate of 10 per cent. per annum. The motion for new trial in several paragraphs set up that the court erred in its findings of fact and declarations of law. The motion was overruled, and the cause is properly here on appeal.

E. P. Watson, for appellant. McGill & Lindsey, for appellee.

WOOD, J. (after stating the facts).

There is no dispute here as to the debt, or that the letters in evidence referred to the note in controversy. Appellant simply contends that none of these letters, when taken in connection with the facts and circumstances as understood...