Reed v. Interstate Oil Co.

• Decision Date: 02 December 1907
• Citation: 92 P. 911,41 Colo. 463
• Parties: REED v. INTERSTATE OIL CO.
• Court: Colorado Supreme Court

92 P. 911

41 Colo. 463

REED v. INTERSTATE OIL CO.

Supreme Court of Colorado

December 2, 1907

Appeal from County Court, City and County of Denver; Ben B. Lindsey Judge.

Action on a note by the Interstate Oil Company against Clinton Reed. From a judgment for plaintiff, defendant appeals. Affirmed.

Clinton Reed, W. L. Turman, and Wendell Stevens for appellant.

W. E Clark, for appellee.

CAMPBELL J.

There have been two trials of this action, one before a justice of the peace, the other in the county court, each resulting unfavorably to defendant, who is here with his appeal from the last judgment.

The abstract is indefinite and unsatisfactory, perhaps, in a measure, due to like conditions of the transcript. Although the evidence, as abstracted, does not clearly or definitely show the nature of the demand on which the action is based or the issues involved, opposing counsel apparently are in accord that the action is one by the payee of an overdue promissory note against the maker, in which, as one defense defendant maker pleads the six-year statute of limitation, which plaintiff seeks to avoid by defendant's recognition of the debt and promise to pay it within the prescribed period of six years before the suit was begun. Inferentially, from references by counsel during the progress of the trial, it would seem that the note was introduced in evidence, and it is spoken of as an exhibit in the case, but we find no exhibit either in the abstract or transcript. The date of its execution and delivery nowhere appears in the record. It seems to be assumed by both parties that the statute would have run against the note upon the 11th day of February, 1903, unless, within six years before beginning suit, there was by defendant an express promise of payment, or an unqualified recognition of the continued existence of the debt. There is possibly some dispute as to whether defendant made a payment on the note on the 11th day of February, 1897, but we think it beyond question that such payment was made. The real controversy is whether, within a period of six years before the action was begun, February 18, 1903, defendant promised to pay the note. Defendant admits that the evidence is directly conflicting upon this issue. He testifies that within the period of six years he did not promise to pay. Plaintiff's witnesses, on the contrary, in effect say that within that period defendant did promise to pay it, and recognized the continued existence of the previous debt, that it remained unpaid, and expressed a willingness and intention to pay it. The law applicable to this case is well settled in this jurisdiction and generally in this country. The leading case is Bell v. Morrison, 1 Pet. (U. S.) 351, 7 L.Ed. 174, and the opinion by Story, J., is an exhaustive exposition of the law. The learned judge says: 'If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and, if any conditions are annexed, th...