93 Ala. 433 | Ala. | 1890
— It is uncontroverted in this case, that the defendant converted sixteen hundred dollars left in his hands by plaintiff’s intestate, to his own use, within one year after receiving it in 1871 ; and it is admitted that of the gross sum left with 'him he had repaid to plaintiff’s intestate all except the amount thus converted. As to'the claim now represented by plaintiff to that money, the statute of limitations began to run from that time, and the bar of the statute was complete before the payments proved to have been made in 1882. Those payments could not, therefore, perform any office by way of removing the bar. — Code, §§ 2628-9; Acklen v. Hickman, 60 Ala. 568; Harwood v. Harper, 54 Ala. 659; Wright v. Paine, 62 Ala. 340; McDowell v. Potter, 49 Am. Dec. 503, and note; Campbell v. Boggs, 48 Pa. St. 524.
The letter of February 4th, 1882, from Barnes to Amason, is lacking in the essentials of an unconditional promise to pay necessary to the removal of the statutory bar already perfect, in that it fails to state the amount of indebtedness, and fails to set forth a promise to pay any sum certain. Its assurance to the creditor, “If you need or want more, call for it without hesitation, and you shall have it,” not stating the amount due, or how much “more” would be paid on demand, .does not operate as such promise as will take any sum from under the bar of the statute. As was said by the Supreme Court of Pennsylvania: “There must be a clear and definite acknowledgment of the debt, a specification of the amount due, or a reference to something by which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay.” — Miller v. Baschore, 83 Pa. St. 356; Landis v. Roth, 109 Pa. St. 621.
This leaves for consideration, on the question whether the bar of the statute was removed by a written promise of defendant, the letters of October 15th, 1882, and September 23d, 1883, to Mrs. and Mr. Watrous respectively. They are certainly not wanting in acknowledgments of the indebtedness, and are, it may be .admitted, sufficiently specific as to the amount thereof. They express a desire and expectation to pay it. They evince a purpose and willingness to pay it after a time. They contain propositions looking to a settlement of it, at one time by the conveyance of certain landed interests to the heirs of the intestate, and, at another, through the satisfaction of a claim which had been or would be asserted against the estate. But neither of these letters can be construed into an unconditional promise to pay the debt, nor into an acknowledgment of its existence accompanied with an unequivocal expression of a willingness to presently pay it,from
The only assignment of error in this case is addressed to the action of the trial court in giving the general charge at the instance of the defendant. The only controversy at the trial was upon the statute of limitations. The action of the court in ruling, in effect, that the claim brought forward by the plaintiff was barred, finds justification in the foregoing considerations. But, if we were of a different opinion than that announced above, yet we could not reverse the judgment of the Circuit Court, for the reason that the bill of exceptions does not purport to set out all the evidence, and it would be our duty to presume, in support of the trial court’s action, that there was other evidence adduced upon which the affirmative-charge for the defendant was properly rested.
Affirmed.
