70 Mo. 138 | Mo. | 1879
The defendant in this case interposed the pica of the statute of limitations in bar of plaintiff’s right of action on a note executed by his intestate to plaintiff dated January 10th, 1864, for $134, due from its date. To take the case from under the operation of the statute plaintiff offered in evidence a certain writing contained in the private account book of defendant’s intestate, signed by said intestate purporting to be a will written in pencil. Said writing was not attested, and was found among the papers of the intestate after his death, and contained the following words: “ That out of my estate she (alluding to his wife) shall pay all my just debts including a debt due my mother of 'about $400.”
The only question presented in the case is whether the said writing was such an acknowledgment as would prevent the operation of the limitation law. The court below held that it was not sufficient, and gave effect to the defendant’s plea of the statute, and this action of the court is assigned for error. There is a conflict of the authorities as to whether an acknowledgment or promise in writing, signed by the party to be bound, if made to a stranger, would be sufficient to take a case from under the operation of the statute of limitations, but there is no conflict, as to the necessity for such promise or acknowledgment-being made to some person, either to the creditor or his representative, or to a stranger. A promise or acknowledgment
