38 Mass. 323 | Mass. | 1838
delivered the opinion of the Court. The doctrine laid down in the case of Bangs v. Hall, 2 Pick. 368, was well considered, has since been tested by experience, and is undoubtedly sound and wise. It has been everywhere acknowledged as sound law. Whitney v. Bigelow, 4 Pick. 110 ; Sigourney v. Drury, 14 Pick. 390 ; Perley v. Little, 3 Greenl. 97 ; Deshon v. Eaton, 4 Greenl. 413 ; Hancock v. Bliss, 7 Wendell, 267 ; Wetzell v. Bussard, 11 Wheat. 309 ; Bell v. Morrison, 1 Peters’s Sup. C. Rep. 351.
The principles there laid down are, that to take a debt out of the statute of limitations, there' must be either an express promise to pay, or an unqualified acknowledgment of present indebtedness. In the latter case the law will imply a promise to pay. This implication may be rebutted, not only by modification or qualification of the acknowledgment, but also by an express refusal to pay, or by a reliance upon the statute, or by any other circumstance which shows a determination not to renew the promise to pay.
The acknowledgment need not be proved by positive evidence, but may be inferred from part-payment or other circumstances. Part-payment, however, cannot be proved by an indorsement made by the party himself. Whitney v. Bigelow, 4 Pick. 110.
An acknowledgment, to take a debt out of the statute, must satisfactorily appear to refer to the very debt in question. Clark v. Dutcher, 9 Cowen, 674. As the defendant has not shown that there was any other debt due from him to the plaintiff, his letter must be presumed to apply to the note in suit. Had there been any other demands between the parties, it could not have been known to which it referred, and so it could not be applied to either.
The letter contains no express promise. And although :t may perhaps imply an acknowledgment of indebtedness, yet -if so, it contains such qualifications and explanations as to exclude any implication of a promise to pay. The defendant obviously does not contemplate a payment of the note, but avows his inability to pay, desires a discharge without payment, and clearly does not express a willingness, much less assume an obligation to pay. Hancock v. Bliss, 7 Wendell, 267.
Judgment on the verdict