Will v. Marker
| Decision Date | 06 February 1904 |
| Citation | 98 N.W. 487,122 Iowa 627 |
| Parties | F. J. WILL, Appellant, v. J. W. MARKER |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. H. M. REMLEY, Judge.
SUIT on a promissory note executed and due in 1884. A demurrer to the petition was sustained, and a judgment rendered for the defendant. The plaintiff appeals.
Reversed.
L. P. Main for appellant.
No appearance for appellee.
To avoid the bar of the statute of limitations, the plaintiff pleaded certain letters, which were alleged to have been written by the defendant concerning the note in suit. The demurrer, of course, admitted the truth of all matters well pleaded. Under our statute causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid. It is not necessary, however, that this admission be an express one; it is enough if the writing clearly and unequivocally refers to the instrument in suit, and clearly admits that it is not paid. In this case several letters, written by the defendant, regarding the note in suit, are set out, and we cannot do more than give excerpts therefrom. In one of the letters he wrote that he had supposed the note paid by his brother, and asks the plaintiff to reduce the amount of interest thereon as much as possible, and to do the best he can for him. In another he wrote that he could borrow $ 100, and asked the plaintiff to accept that sum in full, and stated, "I want to get it off my hands now." In a letter written to the attorney who had the note for collection he said that he could not pay the note, and that, if a judgment would satisfy the attorney, he could take it; but he asked that he be spared the humiliation of being sued. Considering the letters as a whole, they clearly admit that the note was unpaid. Campbell v. Campbell, 118 Iowa 131, 91 N.W. 894; Jenckes v. Rice, 119 Iowa 451, 93 N.W. 384; McConaughy v. Wilsey, 115 Iowa 589, 88 N.W. 1101.
The judgment is REVERSED.
To continue reading
Request your trial
-
Benson v. Richardson
... ... When a debtor disposes of property with the intent to delay or defraud creditors, we deem the disposition inequitable and will set it aside. Id ... In Iowa, a party asserting fraud must establish its existence by clear and convincing evidence and ... ...
-
Senninger v. Rowley
...Iowa, 668, 62 N. W. 28, 57 Am. St. Rep. 287;Mahon v. Cooley, 36 Iowa, 479;Miller v. Beardsley, 81 Iowa, 720, 45 N. W. 756;Will v. Marker, 122 Iowa, 627, 98 N. W. 487; DeForest v. Hunt, 8 Conn. 180; Brown v. Keach, 24 Conn. 73; Spangler v. McDaniel, 3 Ind. 275;DeFreest v. Warner, 98 N. Y. 21......
-
Senninger v. Rowley
... ... liability for the payment of this debt, we think either of ... these writings is such an admission as will set the statute ... of limitations running anew. It is not necessary that both an ... admission of the debt and a new promise to pay shall be made ... Woodman, 93 Iowa 668, 62 N.W. 28; Mahon v ... Cooley, 36 Iowa 479; Miller v. Beardsley, 81 ... Iowa 720, 45 N.W. 756; Will v. Marker, 122 Iowa 627, ... 98 N.W. 487; DeForest v. Hunt, 8 Conn. 179; ... Brown v. Keach, 24 Conn. 73; Spangler v ... McDaniel, 3 Ind. 275; DeFreest v ... ...
-
McClure v. Smeltzer
...18 L.R.A.(N.S.) 223; Doran v. Doran, 145 Iowa 122, 123 N.W. 996, 25 L.R.A.(N.S.) 805; Koht v. Dean, 220 Iowa 86, 261 N.W. 491. In Will v. Marker, 122 Iowa 627, loc.cit. 628, 98 487, this court said: " Under our statute causes of action founded on contract are revived by an admission in writ......