Rankin v. Anderson

• Decision Date: 24 September 1902
• Parties: RANKIN et al. v. ANDERSON. [1]
• Court: Kentucky Court of Appeals

69 S.W. 705

RANKIN et al. v. ANDERSON. ^[1]

Court of Appeals of Kentucky.

September 24, 1902

Appeal from circuit court, Henderson county.

"Not to be officially reported."

Action by Susan Anderson against G. Rankin and another to recover compensation for personal services. Judgment for plaintiff and defendants appeal. Affirmed.

Montgomery Merritt, for appellants.

Jno. F Lockett, for appellee.

O'REAR J.

In this suit to recover for personal services extending over a period of more than five years it was alleged in the petition that defendant Rankin "repeatedly promised that he would pay her [plaintiff] what he owed her, as claimed in the petition as amended, with interest on same from the end of each month when same was due, at such time as she might demand it, and that at no time during said services did as much as five years elapse between the making of such promises, and that within the last five years next before the filing of this amendment he so promised to pay her." By a second amendment it was alleged that the defendant, "at the time he made the promises to pay her for her services, as stated in the original and amended petitions, agreed to pay her for her services what was then owing her by him at the time said promises were made, with interest on same at the end of each month's service." It was further alleged that she had not demanded the payment of any of the sum so owing her until within five years before the filing of this suit. Taking these allegations as true for the purpose of testing the sufficiency of the petition, it follows that plaintiff's cause of action did not accrue until she had demanded the payment of her wages, and that, not having demanded them until within five years before the bringing of the suit, the statutory bar had not been completed. We consequently construe the action to be, not upon the new promise to pay a debt already barred by limitation, but upon the original undertaking, which had never been barred. In our judgment, there is a misconception by counsel for appellants as to the nature of this action. They assume that it is an action upon a new promise to pay a debt that has been barred and that the acknowledgment by the debtor must be so positive and unqualified as to unquestionably raise an implied promise, if it does not contain an express promise, to pay a sum certain. Promises made before a debt is barred, or acknowledgments made, serve to...