47 Ill. App. 20 | Ill. App. Ct. | 1893
Lead Opinion
Mrs. Stata B. Hartz filed in the Probate Court two claims against the estate of her deceased husband, Samuel B. Hartz. The claims were consolidated and tried and $3,300.73 was allowed. On appeal to the Circuit Court there was a trial by that court and $3,157.74 was allowed, and the administrator appealed. The proof of the amount allowed consisted of entries made by Samuel B. Hartz, or by his direction, in books of account kept by him. Two ledgers, two journals and a cash book were produced from the custody of his administrator, as his books of account, and the entries were contained in them. The statute of limitations was interposed as a defense. The first item of the account as shown by the ledger was under the date of October 12, 1878, and the account contained subsequent items on each side down to January 18, 1886, when it was balanced for the first time, and showed a balance in favor of Mrs. Hartz of $4,917.94. This balance of $4,917.94 was carried forward into the new account which was started Avith that balance and continued AArith items on each side, the last of which Avas on January 21, 1887. The account Avas finally balanced January 27, 1887, shoAving a balance due Mrs. Hartz of $4,811.26. This balance Avas carried forxvard on the credit side of the ledger. The ledger account Avas entitled, “ Mrs. Stata B. Hartz,” and the final entry Avas as follows:
“1887. Jan’y "27. By balance...............$4,311.26.”
. The first balancing of the account Avas more than 'five years before the death of Samuel B. Hartz, but the last balancing and entry of the balance due Mrs. Hartz as well as some of the later items of the account were Within such five years. This account, in connection with the entries of credits to Mrs. Hartz in the other books from Which the same were posted to the ledger, Avas the evidence relied upon to establish the claim and take it out of the statute of limitations. It is claimed by appellant that the exddence was insufficient for such purposes.
The nature and uses of a ledger are well known. It is a book used for the purpose of keeping a summary of all the accounts which the person keeping it has with each person in whose name a ledger account is kept. It is the final book of account to which all the items of account are carried from the journals or other books containing items belonging to the account. The items so carried to the ledger account are there entered in their appropriate places so as to show in one place in that book the condition of the whole account with the particular person named. In keeping with such uses and purposes the ledger in question contained charges and credits brought from other books, and is to be presumed to show the condition of the whole account. When the balance was struck it was intended to show the amount due appellee, and we think that it was rightly regarded as an admission that the balance of §4,311.26 was then due, owing and unpaid to her. An admission, wherever found, is admissible in evidence against the person making it. But it is insisted that in order to remove the bar of the statute of limitations an express promise to appellee to pay the amount was essential. It seems to be the rule that an express promise to pay is not necessary, but that an implied promise is a sufficient new promise to remove the bar of the statute. If the entry would be sufficient to establish the claim as an original transaction, no reason occurs to us why it would not be sufficient as a new promise. It is held that a promise will be implied from an unqualified admission that the debt is due and unpaid, accompanied by nothing said or done to rebut the presumption of a promise to pay it. In Ditch v. Vollhardt, 82 Ill. 134, an implied promise arising from a recognition of the debt and an express promise to pay part of it on a day named, was held sufficient, without any express promise to pay the balance. In Schmidt v. Pfau, 114 Ill. 494, it was held that the statement by Schmidt, “ This matter of salary has not been settled yet—we owe you for three years’ salary,” clearly took the claim out of the statute, although the amount of the salary was in controversy. The balance in the ledger was an admission by which Samuel B. Hartz acknowledged «/ © without condition or qualification that the amount there entered was due to appellee and unpaid. From such admission it seems that a promise to pay may be fairly implied. The parties were husband and wife living together, and so far as appears he kept the only account between them. The ledger account was for their examination and inspection, to inform themselves of the condition of the account or for the purpose of settlement, but not for delivery to her. The account being entitled in her name we think was an admission to her, but not of a nature to be delivered to her to take effect. While it may be regarded the same as a writing addressed to her, it is not the same as a writing intended for delivery, but which has never been delivered. We think that she will be presumed to have accepted and acted upon the admission and the promise implied therefrom.
Appellant proved that Mr. Hartz built an addition to the house in which he and appellee lived with his family, the title to which was in appellee, and that he expended $2,000 in building the same. There was no evidence that the money so spent was ever charged to appellee or that it was ever intended to charge her with it. There was no presumption that she was to repay it under those circumstances, and the court was right in refusing to allow it as a set-off. The judgment will be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. I am unable to concur with the majority of the court. I think that part of the account preceding the balance struck January 18, 1886, was barred by the statute of limitations. I do not think that the balance entry of January 27, 1887, appearing upon the ledger of deceased, was sufficient to remove the bar of the statute. My associates are of the opinion that if the entry was sufficient to establish the claim as an original transaction, it would be sufficient as a new promise. It is upon this point that I disagree with them. I am unable to regard the entry as more than a bare admission, unaccompanied by any promise to pay. I do not understand that a mere acknowledgment of the correctness of an account, unaccompanied by a promise to pay, is sufficient to take it out of the operation of the statute. While I do not regard proof of an express promise as necessary, yet, as I read the decision of our Supreme Court, the rule is, that in drder to take an account, already barred, out of the operation of the statute, nothing short of an express promise or circumstance showing an unqualified intention to pay will suffice. It is necessary, too, that the promise be made to the person to whom the barred debt was due or to some one authorized to act in bis behalf. Ayers v. Richards, 12 Ill. 147; Keener v. Crull, 19 Ill. 189; Carroll v. Forsyth, 69 Ill. 127; Norton v. Colby, 52 Ill. 198; Wachter v. Albee, 80 Ill. 47; McGrew v. Forsyth, 80 Ill. 596.
It does not appear from the evidence that the fact of the entry was communicated to the claimant, nor that she knew anything about it until after the death of her husband. To my mind there were no such circumstances accompanying the entry as to warrant the inference of a promise to pay the debt.
