Cook v. Martin

29 Conn. 63 | Conn. | 1860

Sanford, J.

The whole evidence offered by the plaintiffs to relieve their demand from the operation of the statute of limitations, was objected to, and rejected, because it was said that the new promise, claimed to have been made in 1855, was too ambiguous, uncertain and indefinite, both in itself, and in connection with the evidence of what transpired between the parties in 1850, to go to the jury as evidence of a new promise or acknowledgment by the defendant, of the debts for which the suit was brought.

We think the evidence ought to have been received. For although it is true, that in order to relieve a debt from the operation of the statute of limitations by force of a new promise or acknowledgment by the debtor, it must be shown that such promise or acknowledgment was made with reference to the very claim in suit, yet, whether it was or not, is a question of fact for the jury to decide, and no evidence which in any measure tends to prove it can rightfully be rejected. It can not be true, that whenever there are two or more independent claims or debts, evidence of a general acknowledgment of indebtedness is to be rejected, merely because the particular claim in suit is not specifically designated by the parties at the time. Every kind of legal evidence conducing to prove the recognition of the claim or claims in suit as still subsisting, and the debt as one of the debts referred to and spoken of by the defendant in his acknowledgment or promise, should be submitted to the jury. That was the course pursued by the superior court, and sanctioned by this court, in the case of Buckingham v. Smith, 23 Conn., 453. As already remarked, the new promise or acknowledgment must undoubtedly have reference to the very claim in suit, but, to prove such reference, direct evidence is no more necessary than it is to prove any other fact in controversy in our courts. “ If,” says Parker, Ch. J., in Whitney v. Bigelow, 4 Pick., 112, “ there be words of acknowledgment or promise without declared reference to the debt in question, it is for the jury to determine from the circumstances in evidence whether reference was had to the debt which is sought to be recovered.”

In this case the plaintiff offered to prove that, in 1850, the two demands now in suit were exhibited on one piece of paper to the defendant, and that he thereupon promised to pay them. He knew therefore that the plaintiffs claimed that he owed them the aggregate amount of both the book debt and the note, and in 1865 the defendant was inquired of by Cook if he could pay him “ what he owed him,” and replied that he could not then, but would do so another summer. It may fairly be presumed that the parties respectively understood each other, and intended to be understood, as speaking of the aggregate debt so exhibited to and acknowledged by the defendant in 1850. Indeed, the very terms of the inquiry and of the answer include both of these demands. However numerous the items of indebtedness from one individual to another, they all together constitute what the former owes to the latter, and a promise of the former to pay the latter “ what he owes him,” prima facie, if not conclusively, includes them all. The question is not, whether the evidence offered was sufficient to prove that the defendant’s acknowledgment and promise had reference to both of these items of demand, or either of them, or not, but whether it would have conduced to prove such reference. That it would, we entertain no doubt, and therefore are of opinion that it ought not to have been rejected.

We therefore advise a new trial.

In this opinion the othér judges concurred.

New trial advised.