Rolfe v. Pillond

• Decision Date: 28 May 1884
• Parties: JAMES ROLFE, PLAINTIFF IN ERROR, v. THEODORE PILLOUD, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 970

16 Neb. 21

JAMES ROLFE, PLAINTIFF IN ERROR, v. THEODORE PILLOUD, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 28, 1884

ERROR to the district court for Douglas county. Tried below before NEVILLE, J.

C. A Baldwin, for plaintiff in error, cited: Mayberry v Willoughby, 5 Neb. 370. Johnson v. Ghost, 11 Id., 418. Brenneman v. Edwards, 7 N. W. R., 621. Bell v. Morrison, 1 Peters, 351. 1 Smith's Leading Cases, 714.

Congdon Clarkson & Hunt, for defendant in error.

OPINION

REESE, J.

On the twenty-first day of August, 1866, the plaintiff in error and one Frank Pilloud executed certain promissory notes to Brayley & Pitts, and for whom the defendant in error and L Pilloud became surety. The notes were transferred to one W. Dunton, who obtained a judgment thereon against Frank Pilloud and the defendant in error for the sum of $ 593.85, on the tenth day of May, 1871, in the state of Iowa, and which judgment the defendant in error and Frank Pilloud paid. On the twenty-third day of August, 1876, the plaintiff in error signed an instrument in writing, of which the following is a copy:

"August 23, 1876.

"MR. THEODORE PILLOUD--I am sorry that you have had to pay the notes of Frank Pilloud and myself, upon which you was security for us. I cannot at this time pay you the money but propose to pay you my share, which I am told is about $ 413. I hope to be able to pay you soon, but I will let you know in a few days what I can do.

"JAMES ROLFE."

An action was brought in the district court, and upon trial, judgment was rendered in favor of the defendant in error.

The question presented is, whether the foregoing letter is sufficient to take the debt out of the operation of the statute of limitations.

Section 22 of the code of civil procedure is as follows: "In any cause founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise."

By an examination of the letter we find, 1st, an admission that defendant in error had paid a debt upon which he was surety for the plaintiff in error, and that he could not at that time pay the defendant in error the amount so paid, but that he, plaintiff in error, proposed to pay his share (one-half), which he was informed was about $ 413, and which he hoped to be able to pay soon. It is fully proven that this letter referred to the debt for which this action is brought, and it acknowledges an existing debt. It is as clearly a promise to pay the half (or share) of the amount paid by the defendant in error.

While the statute requires an acknowledgment or promise, yet it is not necessary that either the word "acknowledge" or "promise" should be used by the party making the acknowledgment or promise. If the writing, by a reasonable and proper construction, amounts to an acknowledgment or promise it is sufficient.

The statute does not attempt to define the form of the acknowledgment or promise, but simply declares that if an acknowledgment or promise is made, the action may be brought within the time specified after it is made.

The plaintiff in error claims that as the debt was barred at the time of the promise, it could not be revived by any acknowledgment or promise, that by virtue of the statute the debt is extinguished and cannot be revived. To this we cannot agree. Section 5 of the code provides that "civil actions can only be commenced within the time prescribed" in this title, and section 22 in treating of actions founded on contracts provides that "when any part of the principal or interest shall have been paid," or an acknowledgment or promise shall have been made in writing, an action may be brought within the period...