Thomas v. Glendinning

• Decision Date: 19 February 1896
• Docket Number: 657
• Citation: 44 P. 652,13 Utah 47
• Court: Utah Supreme Court
• Parties: GEORGE J. THOMAS, RESPONDENT, v. JAMES GLENDINNING, APPELLANT

44 P. 652

13 Utah 47

GEORGE J. THOMAS, RESPONDENT, v. JAMES GLENDINNING, APPELLANT

No. 657

Supreme Court of Utah

February 19, 1896

Appeal from the judgment of the district court of the Third district, Territory of Utah, Hon. George W. Bartch, Judge.

Affirmed.

William McKay and D. B. Hempstead, for the appellant.

Mr Buswell in his work on Limitations, section 42, says:

"The law as clearly laid down by the modern authorities may be stated in the following propositions: 1--A debt barred by the statute of limitations may be revived by a new promise. 2--Such promise may be expressed or implied. 3--An implied promise is created only by a clear and unqualified acknowledgment, equivalent to a new promise. It must be absolute, unconditional and not controlled by other language."

It cannot be claimed that either of the letters in this case contains an express promise by the defendant to pay.

On the question of what is a sufficient promise or acknowledgment to overcome the effect of the statute of limitations see the following authorities:

1 Wood on Limitations (2d Ed.) secs. 68, 70, 85; Bell v Morrison, 1 Peters 351; Moore v. Bank of Columbia, 6 Peters 86; Shepherd v. Thompson, 122 U.S. 231; McCormick v. Brown, 36 Cal. 180; Curtis v. Sacramento, 70 Cal. 412; Senseman v Hershman, 82 Pa. St. 83; Miller v. Baschore, 83 Pa. St. 356; Sigourney v. Drury, 14 Pick. 387; Weston v. Hodgkins, 136 Mass. 326; Krebs v. Olmstead, 137 Mass. 504; Ayers v. Richards, 12 Ill. 146; Norton v. Colby, 52 Ill. 198; Carroll v. Forsyth, 69 Ill. 127; Wachter v. Albee, 80 Ill. 47; Kollenback v. Dickinson, 100 Ill. 427; Sands v. Gelston, 15 Johnson (N.Y.), 511; Cocks v. Weeks, 7 Hill, 45; Ten Eyck v. Wing, 1 Mich. 40; Jewett v. Petit, 4 Mich. 508.

Richard B. Shepard, A. N. Cherry, and Harrison O. Shepard, for respondent.

The writing must contain an express promise or an acknowledgment of the debt as an existing debt from which an implied promise to pay may be inferred. Biddel v. Brizzolara, 64 Cal. 354.

Taking this case as the law in the matter, an acknowledgment is certainly contained in the words "amount due you, $ 1,127.80," from which an implied promise to pay arises, which certainly is enough to remove the bar of the statute in this action, if it was ever barred.

If a debtor simply acknowledges an old debt, the law implies from the simple acknowledgment a promise to pay it. Wood on Limitations, 1st Ed., 139; Angell on Limitations, 6th Ed., 240; Buswell on Limitations, 59.

Any writing admitting that the debt is due will revive the remedy upon the contract, although there is not upon its face any express promise to pay it. Wood on Limitations, 1st Ed., 210; Elder v. Dyer, 26 Kan. 604; Devereaux v. Henry, 16 Neb. 55.

If the words used are simply "I O U 275 pounds," or "I admit the debt," either of these expressions is sufficient to revive the debt. Wood on Limitations, 1st Ed., 210-211.

A letter which acknowledges a subsisting indebtedness is sufficient. Chase v. Higgins, 1 Thompson & Cook (N.Y.), 220; Wood on Limitations, 1st Ed., 168-172; Custy v. Donlan, 159 Mass. 245.

MINER, J. ZANE, C. J., and YOUNG, District Judge, concur.

OPINION

MINER, J.:

Plaintiff, Thomas, alleged in his complaint, in substance, that on July 1, 1883, he delivered to the defendant, Glendinning, at his request, for safe-keeping, the sum of $ 4,321, belonging to the plaintiff, to be safely and securely kept by defendant for the plaintiff, and which sum was to be redelivered to plaintiff on demand; that on the 1st day of October, 1883, the plaintiff demanded a a redelivery of the money from the defendant, and that defendant had not safely kept the same, but that said amount was lost and destroyed through the negligence and carelessness of the defendant; that he (defendant) did not deliver said sum in question, or any part of said sum, except $ 3,193.20, leaving a balance due and unpaid plaintiff of $ 1,127.80, with interest from October 1, 1883, at 10 per cent. per annum. Plaintiff also alleges that on the 9th day of July, 1884, the defendant acknowledged in writing to plaintiff, that he was indebted to the plaintiff as hereinbefore stated in the sum of $ 1,127.80, and promised in writing to pay plaintiff said sum as aforesaid. The writing is as follows:

"Salt Lake City, July 9th, 1884. G. J. Thomas, Salmon City, Idaho--Dear George: The 7th inst. I mailed to J. W. Birdseye, Davis Bros.' note, with instructions to collect same and pay it to you. I have paid you:

Boyle's account

$ 1,918 95

Davis Bros. (when paid)

500 00

Mrs. Hickey

100 00

Your order

100 00

Cash at store

50 00

Recording Pickham's mortgage

3 00

Cash to Shoup

127 25

Barclay's note

394 00

$ 3,193 20

"Amount left with me:

Cash

$ 400 00

"

3,521 00

Barrack's

3,521 00

$ 4,321 00

3,193 20

Amount due you

$ 1,127 80

"John Barrack has paid nearly all of his notes. It is not necessary to ask him for any money, as his vouchers for flour come through me. The balance due you, I have notes against Nasholds and Pickham (Pickham's secured by mortgage on mine on East Fork), and presume they will be paid this fall. If not, I suppose I will have to. How are you getting along? Presume Jim and you have a good crop, and that you are both well. Regards to all. Yours, truly, Jas. Glendinning."

The complaint also alleges that on the 21st day of July, 1889, the defendant again acknowledged his liability for said indebtedness, and promised in writing to pay the same to the plaintiff. The writing is as follows:

"Salt Lake City, Utah, July 25th, 1889. G. J. Thomas, Esq., Gibbonville, Idaho--My Dear Sir: The statement I submitted to you in '84 (July 9th) is correct, but, if my memory serves me, Col. Shoup paid you on my account $ 1,000, October 23d, and I supposed I advanced enough money to Boyle to liquidate claim. I have been of that opinion all along. Please look the matter up, and oblige, Jas. Glendinning."

Plaintiff also alleges that the original transaction of leaving the money with defendant occurred in the state of Idaho, and that said written promises to pay were delivered to plaintiff by the defendant in the state of Idaho, and that, by the laws of Idaho in force at the time, 10 per cent. interest is allowable on all debts after maturity; and alleges that by reason of these acknowledgments and promises a new and continuing liability upon said original demand was incurred by said defendant to said plaintiff. The complaint was filed January 28, 1893, and was duly verified, and to this complaint the defendant filed a general demurrer, as follows: "Now comes the above-named defendant, and demurs to the plaintiff's complaint herein, and, for cause of demurrer, alleges that said complaint does not state facts sufficient to constitute a cause of action." The demurrer was overruled, whereupon the the defendant, by leave of court, filed his verified answer, which is as follows: "The defendant, answering the plaintiff's complaint in this action, alleges that the cause and causes of action stated in plaintiff's complaint herein are barred by the provisions of section 194 and subdivision 1 of section 196 of the Code of Civil Procedure of this territory. Wherefore defendant prays that plaintiff take nothing by his said complaint, and that defendant be hence discharged, with his costs in this behalf expended." The cause came on for trial before the court without a jury, solely upon the pleadings, and without any other evidence whatever; and the court on May 3, 1895, made and rendered its findings and judgment in favor of plaintiff, and against the defendant, in accordance with the allegations in the plaintiff's complaint. From this judgment this appeal is taken.

Appellant assigns and specifies the following errors, upon which he asks for a reversal of said cause: "The said district court erred, in the following particulars, in overruling defendant's demurrer, and in rendering judgment against the defendant: First, the court erred in overruling defendant's demurrer; second, the court erred in holding that the plaintiff's complaint stated facts sufficient to constitute a cause of action; third, the court erred in rendering judgment in favor of the plaintiff, and against the defendant, solely upon the pleadings filed in said cause, and without any other evidence whatever; fourth, the court erred in holding that the plaintiff's cause of action, as alleged in his complaint, was not barred by the provisions of section 194 and subdivision 1 of section 196 of the Code of Civil Procedure of this territory."

The first question raised is whether the order overruling the demurrer can be considered on this appeal. We think the order overruling the demurrer is a part of the judgment roll, under subdivision 2, § 3413, Comp. Laws Utah 1888, and is properly here for review on appeal from the judgment. The mere fact of pleading over to the action after the demurrer was overruled is not a waiver of the demurrer, under chapter 39, p. 42, Sess. Laws 1894. The decision of the territorial court in Thompson v. Avery, reported in 39 P. 8291, was evidently made without this statute being called to its attention. The demurrer was a general demurrer that the complaint did not state facts sufficient to constitute a cause of action, and no other specific ground of demurrer was stated. We think that, if the appellant relied upon the statute of limitations as a defense, he should have specifically pointed out that objection by reference to the statute in his demurrer; otherwise, the objection on that ground would be waived. Comp. Laws Utah 1888, § 3244; Brown v. Martin, 25 Cal. 82; Farwell v. Jackson, 28 Cal. 105; Spanish Fork City v. Hopper, 7 Utah 235, 26 P. 293; Bank v. Wickersham, 99 Cal. 655, 34 P. 444....