47 Mo. 99 | Mo. | 1870
delivered the opinion of the court.
The plaintiff brought his action in the Louisiana Court of Common Pleas, on the 21st day of April, 1869, on account of goods sold to the defendant in April, 1856. The defense was the statute of limitations. Replication, a new promise by which the case was taken out of the statute, etc.; upon issue joined, judgment was given for the defendant.
The writing by which the bar of the statute was sought to be avoided was a letter written by the defendant to the plaintiff, dated March 3, 1866, in which he says: “By dint of hard labor for the last few years, I have saved, besides supporting my family, one thousand dollars, and I propose giving it all up to my creditors — that is, the creditors of Lea & Rubey — to be equally distributed between them, provided they will entirely release me from further obligations. I have just heard from all the creditors except yourselves, and all have agreed to the proposition ; and now I extend it to you for your decision, hoping you will answer immediately. Most of the creditors have judgments.
The question is whether this is sufficient, under a just and proper construction of the statute, to remove the bar. In the case of Carr’s Adm’r v. Hurlburt’s Adm’r, 41 Mo. 264, it was said that to take a case out of the statute of limitations there should be either an express promise to pay or an acknowledgment of an actual subsisting debt on which the law would imply a promise. But if the acknowledgment was accompanied with conditions or circumstances which repelled or rebutted the presumption of a promise or intention to pay, or if the expressions used were vague, equivocal, or ambiguous, leading to no certain or determinate conclusion, they would not satisfy the requirements of the statute. It is not necessary, however, that the promise should be express ; it may be raised by implication of law, from the acknowledgment of the party. But such acknowledgment should contain an unqualified and direct admission of a present and subsisting debt on. which the party is liable and willing to pay.
Where the maker of a note agreed with the holder to pay him a certain proportion of the amount due, in full discharge of the note, and afterward made and signed a note for the amount so promised, and offered it to the holder in payment of the first note, and the holder refused to receive it, it was held that that was not such an acknowledgment or new promise as would take the first note out of the statute. (Smith v. Eastman, 3 Cush. 355.)
In the case at bar, the defendant wrote to the plaintiff that he had a certain sum of money, and proposed giving it all up to his creditors for equal distribution, provided they would entirely release him from all obligations; and he extended that proposition to the plaintiff for his decision. This was certainly not an acknowledgment of a subsisting debt, coupled with an admission that the party was liable and willing to pay. Instead of an admission, it was an offer of compromise and a promise to pay part for the whole. And as the offer of compromise was not accepted, the liability did not accrue. I ean not see that there
Judgment affirmed.
