Brody v. Doherty

30 Miss. 40 | Miss. | 1855

HaNDY, J.,

delivered tbe opinion of tbe court.

This was an action brought by tbe defendant in error against tbe plaintiff, to recover tbe amount of a bill single executed by tbe latter, and payable to tbe intestate of tbe defendant in error.

Tbe defendant below pleaded tbe Statute of Limitations of • seven years; to which tbe plaintiff replied an acknowledgment by tbe defendant that tbe debt was due and unpaid, and a promise to pay it, within seven years before the institution of the suit,' and upon this issue tbe case was tried.

In support of tbe issue on tbe part of tbe plaintiff, a witness was introduced, who stated, that in September or October, 1853, be called on tbe defendant to pay tbe note, and tbe defendant said that be remembered tbe note well, and bad expected tbe witness to call upon him before with tbe note, and was surprised that be bad not done so, and also stated what tbe note was given for. Witness bad tbe note with him at tbe time, in bis pocket, but thinks be did not take it out. Tbe witness mentioned tbe amount and date of tbe note, and tbe defendant fully recognized tbe identical note sued on, but said be bad bought a judgment against plaintiff’s intestate, which be kept as a set-off against tbe note. When asked at tbe time, by witness, to show him tbe transcript of the judgment, he excused himself, by saying that it was not convenient for him to find it, as it was among his papers. Witness staid all night at defendant’s house, and next morning asked him to show him the judgment. He declined again, and said the truth was, that he had a plenty of property, but no money; but that he was going to Tennessee next spring, and that he would call then upon witness and settle the note, as he would have a plenty of money. He further stated, that he had told the defendant the evening before, that if he had set-offs, and they were legal, he would allow them; that the defendant asked the witness if he had the note with him, and promised to settle it, as above stated; that he never presented any set-off, and has never paid the note; and that there was no other note in existence-between the parties.

The question for consideration is, whether this testimony shows a sufficient acknowledgment or promise to pay the debt, to take the case out of the bar of the statute. The case is different from any heretofore before this court in its circumstances, and it presents the question, whether any other presentation of a note than the actual exhibition of it to the view of the party sought to be charged, accompanied by a promise to pay it, will be sufficient to prevent the bar of the statute.

In Adams v. Terry, 26 Miss. 504, the rule is thus stated by this court: “ The words ‘ presentation of the very claim,’ clearly show that the acknowledgment was required to be made under such circumstances, as that the claim acknowledged could not be misunderstood.” It was intended that the demand, in the form and of the tenor in which it was made, should be shown to the party, so that he might have knowledge of it, and act understandingly in reference to it, and that witnesses might be able to say whether it was that very claim which he acknowledged to be due.

Under this rule, it is necessary that the claim should be present when the promise or acknowledgment is made, and that the promise should be made with a full knowledge of that fact and of the identity of the claim; for otherwise it would be doing violence to the language of the statute, .to hold that the claim had been “presented.” But is it necessary that it should be actually exhibited for the inspection of the party, when he is informed, and the fact is, that tbe person demanding payment has tbe note present at tbe time, and be bas full knowledge of its contents, and thereupon promises to pay it ? We tbinb not. He is apprised of tbe presence of tbe claim, and bas tbe same opportunity to demand an inspection of it, as if it were shown to him in such manner that be could not read it, which would doubtless satisfy tbe language of tbe statute. By promising to pay a claim so presented, be waives tbe production of it, and acknowledges its identity. It is analogous to a tender, in which, though tbe money is required to be produced and exhibited to tbe party to whom it is tendered, yet this may be waived, by a refusal to accept it when it is proposed to be paid, and this will be a good tender.

In this case tbe note was present when tbe demand and promise were made, and tbe defendant was apprised of it, and of tbe date and amount of tbe note; that being tbe only note between tbe parties.' There was, therefore, no possibility of mistake, either by tbe defendant or tbe witness, in relation to tbe debt, and tbe case cannot be within tbe evils intended to be prevented by tbe statute.

Was tbe promise or acknowledgment of tbe defendant, then, sufficient to save tbe bar ?

It appears, that at first tbe defendant claimed to have a set-off against tbe claim, but upon being urged to produce it, be stated that tbe truth was, be bad not tbe money to pay it then, but that be would call and settle it tbe next spring, as be would then have plenty of money. This is a plain admission that be bad no set-off against tbe claim, and an acknowledgment of its justness. He could not, therefore, have meant by tbe term “settle,” that be would j)ay tbe debt by means of a set-off. On tbe contrary, be said that be would settle it in tbe spring, when be would have plenty of money, which is capable of no other just understanding than that be would settle it with tbe money which be would then have; which is nothing less in substance, than a promise'to pay it in tbe spring.

Tbe instructions granted by tbe court below, and tbe judgment rendered, are in accordance with tbe foregoing views, and tbe judgment is affirmed.