OPINION OP THE COURT.
— This is a suit instituted in the district court of the county of Bernalillo on February 2, 1903, based upon a promissory note signed by the defendant Louis Hostetter, and made payable to the order of the plaintiff. Defendants answered setting up the statute of limitations of six years. Whereupon plaintiff filed his reply setting up the following letter as taking the case out of the statute:
“Las Cruces, N. M., November 27, 1901. “E. L. Medler, Esq., Albuquerque.
“Friend E. — Your letter to hand you can tell Mr. Cleland as I told you, as soon ás I get some money I have been expecting I will pay him. I did not get the money I had every reason to expect and so did not settle, as for suit, why you would not make anything as it is not only outlawed, but I have nothing you can touch even if it was not outlawed, but I do not wish to evade the payment and so will pay when I can.
“Yours truly,
“Louis Hostetter."
To this reply the defendant’s demurred upon' the ground that “the alleged promise in writing of which a copy is filed with said reply shows upon its face that it is no promise whatever to pay the alleged indebtedness upon which this action is founded, nor is it any such admission that the debt is unpaid as will raise an implicaton of such a promise.’’
This demurrer having been sustained an amended reply was filed as follows:
“AMENDED REPLY.”
“Now comes the plaintiff, by W. B: Childers, his attorney, and files this his amended reply to the answer of the-defendants, and says:
“1. That although the said note set up in said amended complaint was dated more than six years last-past, and became due and payable more than six years before the bringing of this suit, yet the said defendant Louis Hostetter, within six years prior to the filing of this suit, by admission in writing, admitted that the debt evidenced by said promissory note was unpaid, and promised to pay the same, a copy of which said writings are in words and figures, as follows:
“ ‘Las Cruces, New Mexico, 8-21, 1899.
“ ‘Friend Ed. — Yours from Childers & D. to hand, if you recollect I told you I expected to be paid some money and I have never gotten it as yet. I will see what can be done and let you know. Will pay as soon as I can.
“ ‘Yours truly,
(Signed) “‘Louis Hostetter/
“ ‘Las Cruces, N. M., December 4, 1901.
‘‘ ‘E. L. Medler, Esq., Albuquerque.
“‘Dear S. — Yours to hand and I will not give Mr. Cleland a new note and you can sue if you desire, all the good it would do you even if you got a judgment. It is outlawed all the same whether I acknowledge ever owing it or not, but I have no idea doing him although, but never mind, what I will do is I will borrow money and pay him $100.00, $25.00 cash and $10.00 a month until paid and its that or wait until I get it.
“ ‘Yours truly,
(Signed) “ ‘Louis Hostetter/
“And plaintiff further alleges that at the time of said admission and promises, the said E. L. Medler, was acting as the attorney and agent of the plaintiff/’
To this amended reply defendants demurred in the same language as in the demurrer to the original reply, which demurrer was sustained. Plaintiff declined to plead further, judgment was rendered in favor of the defendants and plaintiff appealed to this court.
The amended reply does not reiterate or adopt bv reference as a part thereof, the letter of November 27. 1901, set up in the original reply. By filing his amended reply in this form plaintiff would seem to have waived his right to allege error in the ruling on the demurrer to the original reply. Gale v. Tuelumne Co.,
It is urged by the appellees that the amended reply is not sufficient to obviate the bar of the statute, and the grounds specially presented in the brief as sustaining that position are: First, that there is no allegation in the amended reply that the two letters pleaded refer to the note sued on; second, that assuming that they do, they do not constitute a promise to pay, or any admission raising the implication of a promise; third, that even assuming that the letters amount to a promise to pay "as soon as the debtor can," such promise is conditional, and there being no allegation of the ability of Hostetter to pay, the reply is insufficient.
It is claimed, however, that even if. either or both letters be construed as an admission that the debt is unpaid, the admission is accompanied with a condition that the plaintiff will be paid when Hostetter 'can pay,” when “Ire gеts the money.” The contention apparently is that these letters are tantamount simpty to a promise to pay upon a certain condition i. e. ability to pay, and that there is no allegation of the realization of that condition. We are aware that there are a large number of authorities which hold that a promise to pay when the debtor “can,” is of no avail as an acknowledgment of the debt .unless accompanied by proof of'the financial ability of the debtor. It will be found, however, that these are authorities either declaring the common law, or construing American statutes declaratory of the common law. They must be read in the light of the fact that the" statute of 21 James I. which had been declared by this court in Browning v. Browning, 3 N. M. 659, to be a part of the common law as imported into this Territory and which is the original English statute of limitations, 'contaras no provision whatever asto the revival of a cause of action by acknowledgment of new promise. That statute is confined to prescribing simply the statutory period barring the several classes of action. Wood on Limitation (1st Ed.) p. 631; Angel on Limitation (2nd Ed.) Appendix p. 3; 19 A. & E. En. of Law (2nd Ed.) p. 288. ■ After its enactment in 1623, however, the questiоn of the effect of a new promise upon the bar in certain suits' upon contract came before the English courts, ■resulting in the holding by those courts, first, that a new promise tolled the statute, second, that an acknowledg,ment furnishing the implication of a promise had that effect, and third, that part payment furnishing a like implication also had that effect. Parsons v. Corey,
“The word can is indefinite. Eor aught that appears in the case the defendant may have been a man of wealth and yet he might not have had the money at his immediate disposal with which to pay this debt. And yet he may have been of sufficient pecuniary ability. * * * The defendant contends that the promise was conditional and that the plaintiff cannot recover because there is no proof that the contingency has happened. But we are of opinion that the words following the promise to pay are too uncertain and indefinite tо constitute a condition and that the promise to pay was absolute.”
So in First Cong. Soc. v. Miller, 15 N. H. 520, it was said:
“In the present case the defendant said he had not the money but would pa3r as soon as he could. This was not a conditional promise, which is a promise to pay on the happening of a certain event, and there was no event to which the words looked forward. The words following the promise to pay are too uncertain and indefinite to constitute a condition.”
So in Connecticut, another state governed by the common law in this respect, it has been held, up’on a full review оf the authorities, that the words “I will pay them” (referring to the debts) “as soon as possible,” constitute an acknowledgment equivalent to an unconditional promise and take the case out of the statute of limitations. Thus it is said in Morton v. Shepard,
“It seems to us that the words cas soon as possible’ are too uncertain and indefinite to amount to a condition. They do not point to any future event capable of proof. It is said they mean as soon as I am able. This would not help the matter' unless we assume that general financial ability is intended, which might be susceptible of proof. But neither the words nor thе context require this restricted meaning. If the debtor should have insufficient property to pay all his debts, it would not follow that it was not possible to pay the debt in question. He might do so perhaps by borrowing the money, by some friendly aid or by his future earnings. The words do not necessarily imply poverty in the promisor; they might with equal propriety be used by a man of wealth, who at the time had no money on hand but who had debts of large amount due him, or who had other estate not at his immediate disposal. What would be possible for one to accomplish must be exceedingly difficult of proof because it must depend so muсh on his own exertions. * * * So that if the promise in question was to be considered express we should incline to hold it unconditional. But the language may be construed as an acknowledgment of the defendant’s indebtedness to the plaintiff and as such it clearly admits the continued existence of the debt and implies a willingness and even a positive intention to pay it, and the words “as soon as possible” do not really restrict or limit the meaning and force of the acknowledgment. On the other hand they are strong words, implying a lively consciousness of obligation and an earnest purpose to pay the debt.” In Vеrmont a promise to pay “as soon as he could” was held in Cummings v. Gassett,19 Vt. 308 , sufficient to take the case out of the statute; and in Illinois a promise to pay when the debtor “made a raise” was given like effect. (Horner v. Starkey,27 Ill. 13 .)
Whatever may be the diversity of opinions, however, among the states which have adhered to the common law language defining what shall be sufficient to toll the statute, we are of opinion that the statute of this Territory does not stand on the footing of the older jurisdictions and that the rules there applicable are not binding here. Unlike the Statute of James, our statute in terms рrovides that either a new promise or an acknowledgment may revive the action; and not content with leaving to uncertainty or to diversity of authority the scope of the acknowledgment necessary to toll the statute, it in terms provides that “an admission that the debt is unpaid” shall have that effect. This very explicit statutory declaration limits the field of authority applicable and renders it unnecessary to discriminate between the two lines interpreting the common law. The Territory of New Mexico in respect to this statute belongs to a group of jurisdictions wherein the common law rule has bеen modified. Other members of this group are Iowa, from which state our statute is copied, and Nebraska and Kansas, in which “an acknowledgment in writing of an existing debt or claim” *•* * takes the claim out of the statute. This difference in the statutes of the several states, is pointed out in 19 A. & En. Ency. of Law (2nd Ed.) p. 297, where it is said, citing the Nebraska and Kansas statutes:
“By statute in several' jurisdictions it is not necesary that the acknowledgment shall imply a promise to pay; an admission of the debt as an existing liability is sufficient even though it is accompanied by words which repel any implication of such a promise.”
Turning to the authorities of this grоup of jurisdictions, the case of Devereaux v. Henry,
“The plaintiff in error has cited a number of authorities, but we think they are not applicable to this case, nor do we believe any can be found which are directly in point, the difficulty being that he loses sight of the peculiar provisions of our statute which must control.
“* * * The rulеs invoked by the plaintiff in error would be appicable to this case were it not for this statute and in that case the alleged acknowledgment would have to be measured by those rules and would be perhaps insufficient to imply a new promise. But as no such implication is necessary under our law, the acknowledgment iself being sufficient we find no trouble in applying its statutory rule.”
In Elder v. Dyer,
“Other decisions are founded upon the statutes which provide for taking causes'of action on contract out'of the oрeration of the statute only by partial payments or by a new promise. These decisions hold that no acknowledgment can take a case out of the operation of the statute unless the acknowledgment amounts in law to a new promise. Of course, such is not the law in Kansas. Many of the decisions also go to the extent of holding that the action must be brought on the new promise and not upon-the original debt or claim. Neither is this the law in Kansas * * *. Our statute to revive a debt or claim requires only acknowledgment of an existing liability on the particular claim in controversy and this acknowledgmеnt may be in any language which the party maldng it desires to use. No phrase or particular form of language-is required; anything that will indicate that the party making the acknowledgment admits that he is still liable on the claim that he is still bound for its satisfaction, that he is still held for its liquidation and payment is sufficient to revive the debt or claim; and there is no necessity that there should also be a promise to pay same; acknowledgment of an existing liability on an honest debt or claim generally raises an implied promise on contract to pay the same; but whether it does or not is not a question to be considered in this stаte. The statute says nothing about an implied contract or promise and the action if revived at all is not to be brought on the implied contract or promise but only on the original liability.”
So, in the concurring opinion of Mr. Justice Brewer, then a member of the supreme court of Kansas, that learned jurist emphatically disposes of the suggestion, that an acknowledgment must under the Kansas statute evince a willingness to pay. He quotes this form of acknowledgment: “I owe that debt, I admit it is an existing and just claim upon me, but I never will pay it.” “Here,” says the learned justice, “there is the express and clear acknоwledgment of an existing debt, but there is not only nothing indicating a willingness to pay but on the contrary an express refusal to pay. Is such an acknowledgment within the statute? Unhesitatingly I answer, Yes.”
In Fort Scott v. Hickman,
Coming now to the Iowa decisions, we are of opinion that they clearly indicate a divergence of the statute now under consideration from the common law. Thus in Mahon v. Cooley,
^Regarding the instrument as an admission that the debt is unpaid we are of the opinion that the name of the party to whom it is made is not necessary to appear therein. The statutе provides that an admission or new' promise in writing will revive the cause of action when barred bjr the expiration of the time limited for the commencement of suits. Both are not required; the admission alone is sufficient. It is not regarded as a contract but is simply a written declaration that the debt is not paid. Tt is unnecessary that the name of the party to'whom it is made should appear therein. The only object of the lair is to secure written evidence attested by the signature of the debtor, that the debt is not paid. This is accomplished by a written admission although it does not show to whom it is made.”
In Stewart v. McFarland,
“Counsel for defendant in error contends that this statement is an admission that there was a mortgage, a hope expressed to pay it off and to apply the proceeds derived frоm a sale of the cattle thereon; that it was not an admission of the debt, as a personal obligation and was not such an admission from which the law will imply a promise to pay, relying upon the case of Shepherd v. Thompson,122 U. S. 232 where the supreme court of the United States held that a mere acknowledgment of a debt is not sufficient but that there must be a distinct and unequivocal acknowledgment of the debt as still subsisting as a personal obligation of the debtor. In that case, however, the supreme court of the United States was considering a statute in force in the District of Columbia which is the statute of Mаryland ánd is quite different from the Iowa and New Mexico statutes, and the case is not in .point here. As said in the case of Mahon v. Cooley, supra., the admission alone is sufficient; it is not regarded as a contract but is simply a written declaration that the debt is unpaid.”
We adhere to the construction thus put upon the statute by the case of Raymond v. Newcomb and we reiterate the conclusion therein announced that the New Mexico statute materially diverges from the common law. We further hold that under the statute it does not require both an admission and a new promise to revive the action, but that either is-sufficient; that the admission need not of itself amount to a new promise; and that the language used by the debtor in this case, that, he will pay “when he can,” is an admission that the debt is unpaid, sufficient to take the case out of the statute, whatever may be the difference of authority as to its effect as a promise. We do not find it necessary to determine in this case the effect of the qualification of an admission otherwise explicit, as for example by a claim of the statute of limitation, for the reason that the letters relied upon, while they mention the fact that the claim is “outlawеd,” clearly evince a disposition on the part of the debtor not to claim the benefits of the statute.
In view of the constantly recurring construction of this statute we feel that we should add .further that there is no intention by this opinion to relax in any respect the rule indicated in Raymond v. Newcomb, that the admission that the debt is unpaid must, to be effectual, be clear, unqualified and reasonably certain. What we do hold is that the language here used constitutes an admission within that rule.
The judgment of the court below is reversed and the cause remanded for further proceedings in accordance with this opinion.