Bates' Adm'r v. Bates, 33 Ala. 102

33 Ala. 102 | Ala. | 1858

WALKER, J.

—Upon demurrer to the evidence, the court below decided, that the testimony was not sufficient to sustain the replication of a subsequent promise to the plea of the statute of limitations. The only evidence relating to the issue upon the replication was given in by a single witness, and is as follows: “ He [the defendant] stated, in substance, that he had once offered to settle the claim in lands; that he either could or would now settle the claim in lands, if James E. Bates was authorized to settle the demand.” Eor the purposes of this opinion we grant to the appellant, that James E. Bates had authority to accept payment in lands, without considering the point, for the concession will not affect the result. The testimony, after that concession, will import a declaration of the defendant, either that he could now settle the claim in lands, or that he would now settle the claim in lands. Adopting the alternative adverse to the party demurring to the evidence, the defendant is to be deemed to have said, that he would settle the claim in lands.

The question which the defendant raised by his demurrer, was, whether, allowing every intendment which could be made in favor of the plaintiff, there was a right of recovery, or whether the jury could legally have returned a verdict for the plaintiff upon the evidence.—Shaw v. White, 28 Ala. 637.

Subjected to this test, did the testimony authorize the judgment rendered by the court? We answer that it did. The testimony can, by no intendment, be construed to mean anything more than that the debt was just, and that the defendant was willing to pay in lauds. It would do violence to reason to say, that a willingness to pay in lands was equivalent to an unqualified willingness to pay, and would attribute a meaning to the party’s words, of which they are not susceptible. The willingness to pay was, then, qualified with the condition, that the payment should be in lands. There is no principle of law better settled, than that a promise upon condition will not prevent the operation of the statute, unless there was a compliance with the condition. That is the necessary effect of our own decisions, which maintain that an express or • implied promise is necessary, and that a promise can only be implied where there is an acknowledgment of a liability and willingness to pay.—Spyker’s Adm’r v. Bradford, 32 Ala. 134; Darrington v. Pearson, 32 Ala. 227; Townes & Nooe v. Ferguson, 20 Ala. 146; Ross v. Ross, 20 Ala. 105; Crawford v. Childress, 1 Ala. 482.

In Bush v. Bernard, 8 Johns. 403, an offer to pay in specific articles was held, as a matter of law, insufficient to revive the cause of action. The supreme court of the United States, on a demurrer to evidence, decided, that the replication was not sustained by the defendant’s declaration that he would deliver the powder, for the failure to deliver which the action was brought, whenever the plaintiff settled a certain claim.—Wetsell v. Bernard, 11 Wheat. 309. This decision is approved by this court, in Crawford v. Childress, supra; and from it the assertion that a conditional promise will not'revive the canse of action is adopted in that ease. As a legal proposition it was decided in Davies v. Smith, 4 Esp. 36, that the words, “I think I am bound in honor to pay, and I shall pay when I am able,” would not remove the bar.' The same decision was made as to the words, “I will pay as soon as I can,” in Tanner v. Smart, 6 B. & C. 603, (13 E. C. L. 273.) In Bell v. Morrison, 1 Peters, 351, it is said, that the promise must be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and if any conditions are annexed, they ought to be shown to be performed. In Taylor v. Stedman, 11 Iredell, 447, (S. C., 13 Iredell, 97,) it was held, that a promise to pay in good notes or judgments would not remove the bar. In Mitchell v. Clay, 8 Texas, 443, there was an offer in writing to pay in certain lands, at a certain price, or at a price to be determined by disinterested men. The supreme court of Texas decided, that the cause of action was not thereby revived. The unaccepted offer of a horse was decided not to be a good acknowledgment, in Huff v. Richardson, 19 Penn. 388.—See, also, Ang. on Lim. 249-254; Cocks v. Weeks, 7 Hill, 45; Random v. Toby, 11 How. 493; Kensington Bank v. Patton, 14 Penn. St. R. 479; Smith v. Eastman, 3 Cush, 355; Adams v. Torrey, 26 Miss. 499.

There was here no conflict in the evidence. The evidence was legally insufficient to remove the bar, and the court did not err in so ruling.

This court decided, in the case of Newhouse v. Redwood, 7 Ala. 598, that it was erroneous for the court to charge the jury, that an offer to pay the principal of the debt in notes, which was rejected, would not revive the cause of action. This decision was thus far clearly wrong, on principle and upon authority, as shown by the citations above adduced. We, therefore, are not willing to. follow it.

The judgment of the court below is affirmed.