Reymond v. Newcomb.

• Decision Date: 03 May 1900
• Citation: 61 P. 205,10 N.M. 151
• Parties: REYMONDv.NEWCOMB.
• Court: New Mexico Supreme Court

10 N.M. 151

61 P. 205

REYMOND

v.NEWCOMB.

Supreme Court of the Territory of New Mexico.

May 3, 1900.

Syllabus by the Court.

1. The clause in section 2926, Comp. Laws 1897, reciting that one of the modes in which a cause of action shall be revived is “by an admission that the debt is unpaid,” being identical with the provision in the Iowa statute, in construction thereof consideration will be given the fact that the statute was adopted from a sister state, together with the construction put upon it by the courts of that state at the time of its adoption. Bullard v. Lopez, 37 Pac. 1103, 7 N. M. 563, followed.

2. A person, having executed a chattel mortgage to secure a certain indebtedness, wrote to his debtor, the mortgagee, as follows: “I shall sell our cattle the first chance. I am tired of the business, and want to pay off that mortgage.” Held sufficiently clear and unqualified to constitute an admission that the debt secured by the mortgage is unpaid, and to operate to remove the bar of the statute of limitations.

Error to district court, Doña Ana county; before Justice Frank W. Parker.

Action by Numa Reymond against Simon Newcomb. Judgment for defendant, and plaintiff brings error. Reversed.

The clause, in section 2926, Comp.Laws 1897, reciting that one of the modes in which a cause of action shall be revived is “by an admission that the debt is unpaid” being identical with the provision in the Iowa statute, in construction thereof, consideration will be given the fact that the statute was adopted from a sister state, together with the construction put upon it by the courts of that state at the time of its adoption.

Wade & Llewellyn, for plaintiff in error.

J. F. Bonham and A. B. Fall, for defendant in error.

CRUMPACKER, J.

On the 12th of April, 1899, the plaintiff in error, Numa Reymond, filed his complaint against the defendant in error, Simon B. Newcomb, in the Third judicial district court for the county of Doña Ana. Afterwards an amended complaint was filed in the cause, and this was afterwards still further amended by the filing of a second amended complaint. To this second amended complaint the defendant filed a demurrer, which was sustained by the court, and, the plaintiff in error electing to stand upon his second amended complaint, the cause of action was thereupon, by the judgment of the court, dismissed. For a review of this ruling of the court, below, the plaintiff in error has brought the cause into this court, assigning the following errors: “(1) The court erred in and by its judgment in holding the complaint insufficient and dismissing the action; (2) in determining that the several payments made by the defendant upon the note did not take the case out of the operation of the statute of limitations; (3) in determining that the writing set forth in the complaint was not a sufficient admission, coupled with the other allegations of the complaint, to revive the cause of action.” The facts admitted by the demurrer are substantially as follows: That on December 5, 1890, defendant made and delivered to the plaintiff, in this territory, his promissory note in writing for the sum of $6,624.63, which became due and payable one year after date; that at various times during the period of time intervening between the maturity of the note and the filing of the complaint in the district court the defendant made various payments on the note to the plaintiff, which were duly credited thereon, the last of such payments being within six years prior to the bringing of the action, and the total payments amounting to $1,956.72; that at the time of the execution of the note the defendant executed and delivered to the plaintiff his mortgage on certain property therein described, to secure the payment of the note; that afterwards, to wit, on February 1, 1897, the defendant delivered to the plaintiff a writing as follows: “Las Cruces, N. M., Feb. 1, 1897. Dear Reymond: I shall sell out cattle at the first chance. I am tired of the business, and want to pay off that mortgage. [Signed] Simon B. Newcomb;” and that the mortgage mentioned in said writing is the mortgage given by the defendant to secure the payment of the note sued upon in the complaint. The grounds of demurrer were that the note and original contract are barred by the statute of limitations; that the payments set up did not constitute such a new promise or admission of the indebtedness as would renew the contract; that the writing set up in the complaint did not constitute a new promise to pay the original debt; and that the petition stated no cause of action, etc.

The two questions presented and argued in the briefs are: First, is the writing set forth in the complaint a sufficient admission that the debt is unpaid, and to revive the cause of action founded upon the contract? and, second, does a part payment of principal or interest on a promissory note within the period of the statute of limitations toll the statute? A determination of the first question disposes of the case. Our statute (section 2926, Comp. Laws 1897) provides that “causes of action founded upon contract shall be revived by an admission that the debt is unpaid, as well as by a new promise to pay the same, but such admission or new promise must be in writing, signed by the party to be charged thereby.” We find no case decided by the supreme court of this territory in which the statute has been construed with reference to what shall be deemed a sufficient admission that the debt is unpaid, but observe that in the case of Bullard v. Lopez, 7 N. M. 563, 37 Pac. 1103, where it was contended that it was apparent from the similarity of the language employed in the Iowa and our statute that we adopted the Iowa statute with the construction placed upon it up to the time of such adoption, this court held that some consideration in construction should be given to that fact when we incorporate into our law a statute of this kind from a sister state; and under the authority of Armijo v. Armijo, 4 N. M. (Gild.) 65, 13 Pac. 92, there recognized this principle by adopting the construction of the statute upon the question there in controversy placed upon it by the Iowa courts. The language used...