Philp v. Hicks

• Decision Date: 22 January 1917
• Docket Number: 18524
• Citation: 112 Miss. 581,73 So. 610
• Court: Mississippi Supreme Court
• Parties: PHILP v. HICKS

73 So. 610

112 Miss. 581

PHILP v. HICKS

No. 18524

Supreme Court of Mississippi

January 22, 1917

Division B

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Suit by Dr. A. A. Hicks against R. M. Philp on suggestion of error.

Judgment reversed, and cause dismissed.

Wiley P. Harris, for appellant.

At the outset, the court's attention is especially called to the consideration of the following facts: 1st, that this cause of action accrued in a foreign country; 2nd, that the defendant Philp, was in that country, and subject to suit, fully ten months after the cause of action accrued; 3rd, that the right of action upon the note in question was barred by the laws of that country more than three and a half years before the filing of this suit. Chapter 75, Revised Statutes of Ontario. 4th, that the defendant was a citizen of this state when suit was brought. See plaintiff's declaration, p. 2 of record; therefore the laws of this state must govern, under the facts of this case; 5th, that under the laws of this state the note was barred three and a half years before the filing of this suit--nine and a half years having elapsed since the cause of action accrued. Revised Statutes of Ontario, chapter 75; Wright v. Mordaunt, 77 Miss. 537; Davidson v. Morris, 5 S. & M. (Miss.) 564; Smith v. Moreland, 12 S. & M. (Miss.) 663; Crane v. French, 38 Miss. 532.

With the authorities about evenly divided on the question as to the identity of the particular debt necessary to be contained in the writing, our court has gone to the extreme view, in requiring the writing to be precise and definite as to the particular debt and the amount due. Trustees, etc. v. Gilman, 55 Miss. 148; Eckford v. Evans, 56 Miss. 18; Fletcher v. Gillan, 62 Miss. 8; Stevenson v. Morris, 69 Miss. 232.

These decisions announce a rule which is far more exacting than that required by the weight of authority and clearly indicate that our court will not indulge a doubtful or uncertain acknowledgment as being sufficient evidence of a new or continuing contract to revive an outlawed demand.

The general rule as to the sufficiency of such an acknowledgment may be stated as follows: An acknowledgment in order to take a case out of the operation of the statute of limitations, must be an express, direct, unequivocal, unconditional admission that the obligation is a present, subsisting debt, for which the party making the acknowledgment is then liable and willing to pay. Koop v. Cook, 135 P. 317; Hansen v. Towle, 19 Kan. 273, at page 281; Powell v. Petch, 136 P. 55; Connecticut T. & S. Co. v. Weade, 172 N.Y. 497; Hamilton v. Beaubin, 142 P. 245; Wolfe v. Flemings, 23 N.C. 290; Davidson v. Morris, supra.

A writing which is no more consistent with the claim that an acknowledgment was intended, than with the claim that it was not, or if the expression leave no certain conclusion but at best a probable inference, which may affect different minds in different ways, it is not sufficient evidence to revive a cause of action previously barred. Bell v. Morrison, 1 Pet. U.S. 351; Heyton v. Cooper, 65 Kan. 359; Weaver v. Weaver, 54 Pa. 152; Chambers v. Garland 3 Greens Rpts. (Iowa) 322.

An admission contained in a writing, the purpose of which is to procure a compromise of a barred demand, does not operate as an acknowledgment of the debt so as to remove the statutory bar. Pools' ex'r v. Rolfe et al., 23 Ala. 701; Weston v. Hodgkins, 136 Mass. 326; Chambers v. Garland, 3 Greens Rpts. (Iowa), 322; Atwood v. Cobrun, 4 N.H. 315; Cross v. Conner, 14 Vt. 394; Connecticut T. & S. Co. v. Weade, 172 N.Y. 497; Wolfe v. Flemings, 23 N.C. 290; Bates Adm. v. Bates, 33 Ala. 102; Mumford v. Freeman, 8 Metcalf 432.

As authorities in support of appellant's contention in this case, and to be considered along with those herein cited, I refer the court to the following: Moore v. Bank of Columbia, 8 Law Ed. U.S. Rpts. 329; Bell v. Rowland, 3 Am. Dec. 729; Holladay v. Weeks, 127 Mich. 363; Marcum v. Terry, 142 S.W. 209; Martin & Co. v. Edwards, 55 Iowa 374; Wood v. Merriett, 71 P. 579; Kelly v. Strouse, 43 S.E. 280; Morgan v. Walton, 4 Barr. (Pa.) 321; Shepheard v. Thompson, 30 Law Ed. U.S. Rpts. 1156. Trustees, etc. v. Gilman, 55 Miss. 148; Allen v. Hillman, 69 Miss. 225.

The true principal upon which statutes of limitations are founded, is to compel the settlement of claims, within a reasonable period after their origin, while evidence is fresh in the minds of the parties and witnesses, and not upon the presumption of payment or releases arising from the lapse of time. "Wood on Limitations, sec. 5; Shepheard v. Thompson, 30 Law Ed. U.S. Rep. 1156; Bell v. Morrison, 1 Pet. U.S. Rep. 351. As stated in the case of Ayers v. Richardson, supra; "The statute presupposes the debt to have been due, and that there is no evidence that it has been paid. It would be absurd to say that a new promise shall be implied by the bare admission of the party of what the law supposes to be true."

Fulton Thompson and R. H. & J. H. Thompson, for appellee.

A perfect answer to appellant's pleas of the statute of limitations. The written acknowledgment of the debt.

It being an admitted fact that defendant left Ontario less than ten months after the maturity of the note sued upon, and before an action on the note there would have been barred, no defense can be based on the laws of that province. The sole purpose and effect of our statute, Code 1806, sec. 3114, by which alone the statute of limitations of another state or country, can be pleaded in this state, are to give a defendant sued here the benefit of a bar complete elsewhere. Wright v. Mordant, 77 Miss. 537, 27 So. 640.

The cause of action on the note not having been barred by the laws of Ontario when defendant left that province, the laws thereof do not bar the suit in this state, and this being true, we have only to inquire if the written acknowledgment of the debt, about to be mentioned, prevents the cause of action from being barred under the statutes of this state.

The claim of distinguished counsel for appellant that the acknowledgment of the debt is ineffectual because of the enquiry in the letter, "what will you take for a settlement in a lump sum?", is without merit, and for two reasons:-

FIRST: The acknowledgment of the debt was the admission of a particular fact, independent of any offer to pay that may be implied from the enquiry. There is no statement in the letter containing the acknowledgment that the same was confidential, nor that it was made or written without prejudice. It contains no offer of a sum of money to buy peace. There was no treaty pending between the parties when the letter was written for a compromise, but the same was voluntarily written by defendant; and the implied offer to pay was wholly voluntary and unsolicited. Two decisions of this court are controlling. Grubbs v. Nye, 13 Smed. & M. (21 Miss.), 443; Garner v. Myrick, 30 Miss. 448.

The acknowledgment contained in the letter is both separable and separated from the enquiry therein written. 16 Cyc. 950, and notes; see, also, 25 Cyc. 1325, especially p. 1327; 1 Ency. of Evidence, 599 and notes.

The judgment should be affirmed, irrespective of the acknowledgment of the debt, because, as we have herein before shown, appellant did not make out a defense; he did not make it out either under the Ontario or Mississippi statute. Smith-Frazier Boat Co. v. White, supra.

Answering appellant's brief touching the acknowledgment of the debt, ingenius counsel for the appellant fails to give significance to the fact that out statute, Mississippi Code, 1906, sec. 3118, relating to acknowledgments and new promises, embraces two separate things, acknowledgments and new promises. Counsel very ingenuously and ably contends that an express assumption of the debt is an essential element of an acknowledgment of it. This is to confuse an acknowledgment with a new promise. It may, perhaps, be said that a new promise failing to evidence an intent on the part of the promisor to pay the old debt, is sufficient, because a sufficient new promise would necessarily evidence an intent to pay. The new promise of the statute is a promise to pay the old debt.

It is different, however, with an acknowledgment made by the statute, a complete and perfect answer to the statute of limitations. An intent to pay is not an essential of an acknowledgment of a debt. Would this court for one moment allow a promisor who had in writing fully and unequivocally acknowledged an old debt to testify that at the time he executed the written acknowledgment he had no intent to pay or that it was his intent not to pay? Surely not.

The authorities cited by opposing counsel are no doubt the decisions of courts of states wherein only a new promise will take a debt out of the statute of limitations. If our statute had omitted an acknowledgment of a debt and had provided only that a new promise was required to prevent the bar of limitation, an acknowledgment which in no way evidenced an intent to pay would probably be insufficient, for the reason that it would not be a good new promise. The Mississippi Cases, Grubbs v. Nye and Garner v. Myrick, herein before cited, are, we think conclusive of the case.

OPINION

COOK, P. J.

This case was affirmed on a former day of this term without opinion, and is again brought to our attention on suggestion of error.

Suit was begun in the court of a justice...