Dorsey v. Gunkle

18 S.D. 454 | S.D. | 1904

Fuller, J.

That the bar of the statute of limitations has been removed by a subsequent written acknowledgment of the debt, evidenced by a promissory note upon which the action was instituted, is the only question presented by this appeal.

In addition to the defense of usury and the statute of limitations, the defendant alleges “that he has paid to E. P. Heizer, one of the makers of said note, a sum sufficient to pay the full amount lawfully due thereon, with express instruction to said E. P. Heizer that the same be used for the payment • of said note, and alleges, on information and belief, that said note has been fully paid.”- The undisputed evidence shows that no part of the note has ever been paid by either party, and that the foregoing allegation relates to a remittance of $100 inclosed in a letter written by the defendant to Heizer, the joint maker of the note and a resident of Sioux City, Iowa. By due course of mail, and after the statutory bar had become effective, this letter was sent from Sioux Falls, where the defendant resides, to Mr. Heizer’s address in Sioux City, but he never acknowledged the receipt of the same, and apparently failed to inform the plaintiff that he had received such remittance and communication pertaining to the note. Neither the letter nor the draft made payable to Heizer was produced at the trial or accounted for, but, concerning the same,, the defendant testified on cross examination in part as follows: “Q. Did you instruct him to apply it on the note? A. I stated, ‘There is the $100 for that note’ — not to apply it on the note, but for the note. Q. ■ Do you remember anything else you said in the letter? A. No, sir; a straight business letter. Q. Did you tell him to send your letter or deliver your letter to the holder of the note? A. No, sir, I sent this draft on a letter from him stating that he could settle for $100.”

By the enactment of the following provision, our Legislature has specified what is necessary to the statutory bar: “No acknowledgment or promise is sufficient evidence of a new or continuing contract, whereby to take the case * * * out of the operation of this chapter, unless the same be contained - in some writing signed by the party to be chraged thereby. ” Section 79, Rev. Code Giv. Proc. 1903. If the new or continuing contract must contain an acknowledgment of the indebtedness or promise to pay the same, and be signed by the party to be charged thereby, it is evident that no such instrument appears in the record. No claim is made that the plaintiff ever authorized Heizer, the joint maker of the note, to accept from the defendant on her behalf any money, acknowledgment of the indebtedness, or promise to pay the same. To take the case out of the statute, there must be a new or continuing contract signed by the debtor, and accepted by the creditor or his authorized agent. Were we to assume that an acknowledgment or promise might be gathered from the record, it would still be necessary to concede that it was made by a debtor to his joint obligor, and not to the creditor or anyone authorized to act on her behalf. Construing a similar statute"in Hostetter v. Hollinger, 117 Pa. 606, 12 Atl. 741, in conformity with the universal doctrine, that court say: “To toll the bar of the statute, a promise to pay must be unequivocal and absolute, an acknowledgment clear and definite and consistent with such a promise, and in either case made to the owner of the right of action, or to his agent in that behalf. ” The following decisions are directly to the point that in order to constitute a new or continuing contract the acknowledgment or promise must be made in writing to the creditor, or his agent, over the signature of the debtor, and be direct and unqualified: Pierce v. Merrill, 128 Cal. 473, 61 Pac. 67, 79 Am. St. Rep. 63; Wachter v. Albee, 80 Ill. 47; Niblack v. Goodman, 67 Ind. 174; Trousdale’s Adm’r v. Anderson, 9 Bush. 276; Hussey v. Kirkman, 95 N. C. 63; Taylor v. Hendrie, 8 Nev. 243; Sibert v. Wilder, 16 Kan. 176, 22 Am. Rep. 280. By sleeping upon her rights plaintiff confessedly lost her remedy, and the record discloses no acknowledgment or promise sufficient to take the case out'of the statute.

The .judgment appéaled from is affirmed.