18 W. Va. 274 | W. Va. | 1881
announced the opinion of the Court.
The first error assigned by the plaintiff in error is, that the circuit court would not compel the production by the plaintiff of two letters written by the defendant and relied on by the plaintiff as acknowledgements in writing sufficient to take his case out of the statute of limitations. The motion of the defendant to require the production by the plaintiff of these letters was made before the defendant had put in the plea of the statute of limitations, and was obviously made to obtain a view of these letters, that he might determine, whether he would plead the statute of limitations. These letters were entirely immaterial to the trial of the only issue then in the case, that is, the issue on the plea of non assumpsit; nor does the affidavit allege, that they were material to the trial of this issue. Clearly the court did- right in refusing to require the plaintiff to produce this evidence. Even had they been material evidence for the plaintiff in the issue then joined, the court could not properly have for this reason required their production. To justify such requirement, they must have been material evidence for the defendant; for the rule is, that the defendant has a right to enforce the production of such documents by the plaintiff, as relate to his defence, and does not extend to the enforcement of the production of documents by means of which the plaintiff’s case is to be established. See Wigram on the Law of Discovery p. 90, 13 vol. of law library. The case of Raymond v. Howland 17 Wend. 389 referred to as an authority on this point by the plaintiff in error in his petition has no bearing on the question. It simply decides, that when the letters of the correspondent of the defendant are relied upon at the trial as evidence in.support' of
The second assignment of error is the allowing of the deposition of plaintiff’s witnesses to be read at the trial, because, as the petition alleges, these depositions had been before taken in this cause and filed with the six letters referred to in them, and these depositions and letters had been taken from the custody of the clerk without the leave of the court and without leaving copies or other means of identifying them, and there is no proof identifying the letters filed with the last depositions with those filed with the first. There is however in the record no proof of the alleged facts, on which this assignment of error is based. There is no proof, that after the filing of these letters they were withdrawn from the clerk’s office with or without the leave of the court and no copies of them left. The record is entirely silent on this point. Thus there is no foundation for this assignment of error.
The third assignment of error is the admitting of letters written by the defendant more than five years before the commencement of this suit. These letters were referred to in the defendants letter written September 9, 1871 acknowledging the debt within five years before the commencement of this suit; and they were used to identify the debt referred to in this letter. We will presently see, that parol evidence even was admissible to identify the debt referred to in a letter containing an acknowledgment of the debt, and therefore the court did not err in admitting these letters or such of them as tended to show, what debt was intended to be acknowledged by the letter dated the 9th day of September, 1871. If any of them had no tendency to show this, as may be the case with the two letters not copied in the record, still it would have
The fourth assignment of error is that the court erred in admitting parol evidence and the record of the Powhatan circuit court to make certain, what was not made certain by the defendant’s letter relied on to take the case out of the statute and to identify the debt referred to in this letter. This is the main objection urged to the action of the court below; and if it cannot be sustained, there is no error in the record, of which the plaintiff in error can complain. The position taken by the counsel of the plaintiff in error is, that if the bar of the statute is sought to be removed by proof of a new promise in writing, such promise must be clear, explicit, unequivocal and determinate, and if any conditions are annexed, they must be proven to have been performed; and if an acknowledgment is relied upon to take a ease out of the statute of limitations, it should be a direct acknowledgment of a subsisting debt from which an implied promise maybe fairly inferred. These positions are sustained by the authorities referred to by the counsel of the plaintiff in error : Bell v. Morrison et al., 1 Pet. 351; Moore v. President &c. Bank of Columbia, 6 Peters 86; Bell v. Crawford, 8 Gratt. 110; Tazwell v. White’s adm’r, 13 Gratt. 329; Aylette’s ex’r v. Robinson, 9 Leigh 45.
These authorities do not sustain the position, that extrinsic evidence parol or written can not be received to make certain the debt, which the defendant has acknowledged in writing without specifying the amount or date of the debt. On the contrary in Bell v. Crawford, 8 Gratt. 177, Judge Moncure says: “ It was not necessary, that the amount of the debt should have been specified in the letter. The particular debt, to which the letter refers, may be identified by extrinsic evidence.” This position of Judge Moncure is sustained by the authorities. See Lechmere v. Fletcher, 1 C. & M. 631; Bird
The only question remaining to be determined is, does the evidence in this case show, first, an acknowledgment by the defendant of the debt in writing, and whether this acknowledgment is a direct acknowledgment of a subsisting debt, from which an implied promise to pay it may be fairly inferred; and secondly, is the debt, if so acknowledged, made certain by extrinsic evidence either parol or in writing? Our statute (see Code of W. Va. p. 548 eh. 104, § 8) provides, that “no promise except by writing as aforesaid shall take a case out of the operation of the statu+e. An acknowledgment in writing as aforesaid, from which a promise may be implied, shall be deemed to be such promise within the meaning of this section.” We have seen, that no promise can be implied from any acknowledgment except a direct acknowledgment of a subsisting debt; and we may add, that such implication cannot arise, if it appears from the writing, that though the debt was directly acknowledged, yet this acknowledgment was accompanied by expressions, which showed, that the defendant did not intend to pay it and did not intend to deprive himself of the right to rely on the statute of limitations; for under such circumstances no promise of payment can be fairly implied. Thus in Moore v. The Bank of Columbia, 6 Pet. 90, a witness proved, that he casually overheard a conversation between the defendant, who was drunk, and two of his drinking companions, who were bantering him about his independent circumstances and about his being so clear of debt and of the banks. The defendant being drunk jumped up and danced about the room and exclaimed: “Yes, except one damned $500 in the Bank of Columbia, which I can pay at any time.” It was decided, that this did not remove the bar of the statute, though thepromise or acknowledgment was not then required ■to be in writing. So the bar of the statute was held not to
In the case before us the letter relied upon to remove the bar of the statute of limitations was as follows:
“CharbestoN, September 9,1871.
My Dear ErieND: — Your letter from Richmond reached me this morning. If you knew the struggle I have had since the war you would not think hard of me, or strange in me, for not paying you all I owe you. It is needless for me to -give you a detail. Yon are not my only creditor by a good deal, and my bread and meat debts I have had to pay first. If I had any money over and above this, I would send it to you without solicitation. I have land, the taxes on which amount to full $100 a year. If I don’t pay I lose the land. I have been at the bar about two years; a lawyer has to wait for his fees; mine are beginning to come in, and as fast as I get money it goes in payment of what I owe. I will never keep a $100 in my pocket as long as I owe a just delt, and never have. On my honor, you shall be paid as I get the money over and above my bread and meat,' I can do no more. I have just returned*283 from Washington, where I went to get a patent for some machinery, &e. This , will make me-rich very soon. The first money I get from any source I will send you. I have contracted to sell some land in November next. If I get the •money, I will then pay you. If I succeed in my machinery, I will do for you a great deal. I cannot doubt my success. If I give bond and it fall into another’s hands it may ruin me, and in the end be of little benefit to you ; for if my credit is lost, I am lost. You may rely upon it, that I know better how to get means to pay you than you can suggest. I have acknowledged the debt to you in my letters again and again; therefore it stands as good as if you had my bond. Trust to my honor and good faith, and your kindness to me will yet be your salvation. Upon this you may rely.
“Your frienfd,
“JohN S. Swann.”
Though this letter points out a source of payment, yet it obviously does not confine the creditor to the sources indicated. It certainly in effect says, that in any event the debt must be paid. I can give no other meaning to the words “I have acknowledged the debt to you again and again, therefore it stands as good as if you had iny bond.” He certainly intended not only to acknowledge the debt, but also to expressly waive his right to claim the benefit of the statute of limitations; and from such an acknowledgment and such expressions a ■promise to pay the debt may be fairly implied.
The only remaining question to be determined is: Does the extrinsic evidence parol or in writing clearly identify the debt, which the defendant thus acknowledged? There can, I think, be no doubt on this point. The defendant owed but two debts to the plaintiff, one of $456.31 and interest for moneys paid by the plaintiff as his surety, and the other for $18.75 for fees due the plaintiff as a lawyer. There could not be much doubt on the reading of this letter as to which of these two debts was referred to. Though if it was unexplained by the other letter referred to in it, and no parol evidence had been introduced, there might be a possibility, that it referred to the small debt he owed the plaintiff for fees. But when those other letters and parol evidence are referred to, all doubt seems to me to be removed. It seems to me, that in some of
Judge Parker in Aylette’s ex’r v. Robinson, 9 Leigh 49-50 well says: “If one upon an account being presented to him says: ‘It is right, and I will settle it at a future day/ there could be no doubt of his meaning; and a jury would infer a promise.” If the.letter, to which this was a reply, had been produced by
Other of the defendant’s letters show clearly, that the debt he acknowledged to be due in this letter of September 9,1871, was this debt, and not the only other debt he owed him, that is, the $18.75 for lawyer’s fees. In the very first letter the defendant wrote he says: “I wrote to you on the subject of my debt to you and received no answer. In the fall of 1864 saw Mr. Green at Powhatan Court House and told him to tell you I had deposited in the Bank of Virginia money enough to pay your and Mr. Hobson’s judgment.” The amount so deposited was $1,200.00, as shown by another part of this letter, and it was afterwards all drawn out and used by the defendant, as he states in this letter. The amount of this deposit shows, that by “my debt to you” he meant this debt for money paid as his surety. It is also shown by his saying, it was to pay the plaintiff’s and Mr. Hobson’s judgment; for though they had no judgment, yet Hobson and the plaintiff had paid off a judgment against the defendant, which was obviously what was referred to though in inaccurate language. Again in another letter he says, he will send him on March first next $50.00,. This was obviously on this debt due the plaintiff as surety ; for it greatly exceeded the small debt due for lawyer’s fees. He says further, that he will be able soon to send him $200.00 evidently on this large debt for money paid as his surety. There are throughout the letters of the defendant expressions, which taken in connection with the parol evidence show, that the only debt referred to in the whole of the correspondence produced at the trial was
The judgment of the circuit court of December 22, 1877, must be affirmed; and the defendant in error must recover of the plaintiff in error his costs in this court expended and damages according to law.
Judgment Affirmed.