Weston v. Hodgkins

• Decision Date: 05 January 1884
• Citation: 136 Mass. 326
• Parties: James R. Weston v. J. H. Hodgkins
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 326

James R. Weston v. J. H. Hodgkins

Supreme Court of Massachusetts

January 5, 1884

Argued November 22, 1883

Suffolk. Contract, upon three promissory notes made by the defendant, payable to the plaintiff or order, dated March 13 1871, one for $ 100, payable in one year, one for $ 150 payable in two years, and one for $ 150, payable in three years from date, with interest at ten per cent per annum. Writ dated June 13, 1881. Answer: 1. A general denial. 2. The statute of limitations.

At the trial in the Superior Court, before Barker, J., the plaintiff put in evidence the notes declared on, the signature thereto not being specially denied; and, for the purpose of taking the case out of the statute of limitations, offered two letters, written by the defendant to S. N. Maxcey, a person employed by the plaintiff to collect said notes, which letters contained the following:

"April 18, 1881. Sir, -- Your letter came to hand. I see by those papers you send to Mason and Hamlin the order for the bill against the church. Why did Weston send that to them? What I want to know is, What is Weston willing to take for the notes? I cannot pay the face of them and interest, as he looks at it; he must not expect it. I will get him an organ of the firm, and he shall have it as cheap as I can get it and will tell him how much I will pay him per month; but I want him to set the amount which he thinks he ought to have."

"Feb. 7, 1876. Sir, -- My attention has been called to a letter from you to Mason and Hamlin Organ Co. I think it would have been as well to have sent to me. According to the letter, you gave them to understand that Weston has not had but $ 37, the order on the church; and what you paid him, and what was paid Morrison for him, makes $ 80. You wrote also that he would make a discount. Now write what he will do, and I will tell you on what terms I will make payments."

The defendant testified, upon cross-examination, that both of these letters were written and sent by him, and referred to the notes in suit.

The defendant asked the judge, among other things, to instruct the jury that said letters were not sufficient to take the case out of the statute of limitations. But the judge refused so to do, and instructed the jury, that, if they found that these letters were written within six years next before June 13, 1881, and that they referred to the notes in suit, they were of themselves sufficient to take the case out of the statute.

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

Exceptions sustained.

C. W. Clark, for the defendant.

W. C. Greene, for the plaintiff.

Colburn, J. C. Allen & Holmes, JJ., absent.

OPINION

Colburn, J.

It was decided in Bangs v. Hall, 2 Pick. 368, upon an elaborate review of all the authorities, that, to take a debt out of the statute of limitations by reason of an acknowledgment or new promise, it is necessary that there should be an unqualified acknowledgment, not only that the debt was just originally, but that...