39 Minn. 367 | Minn. | 1888
An action on two promissory notes, made by defendant, payable to the plaintiff’s testator, — one dated January 1, 1S72, payable in 12 months from its date; the other dated February 1, 1872, payable six months after its date. On each of these notes was this indorsement: “June 20, 1882. I hereby acknowledge the indebtedness of this note. W. X. Sigaeoos.” The evidence was sufficient to justify all the findings of fact by the court below, including the finding that the indorsements were wholly written and signed by the defendant. If the indorsement is a sufficient acknowledgment to operate as a new promise to pay, the causes of action on the notes are not barred by the statute of limitations; otherwise the statute is a defence. As to what is a sufficient written acknowledgment, the ’Tile laid down by this court in Whitney v. Reese, 11 Minn. 87, (138,) and ever since followed, was “that there must be either an express promise, or an acknowledgment expressed in such words, and attended by such circumstances, as give to it the meaning, and therefore the force and effect, of a new promise. * * * And,'in the case of an acknowledgment or implied promise, there should be a direct recognition of the indebtedness sued on, from which a willingness to pay the same may be reasonably implied.” Here the acknowledgment is direct and unqualified, and it is impossible to conceive any purpose the defendant could have had in writing it in so terse and bare terms on the back of the note, except to indicate that he still considered the note a binding obligation, which he expected and intended to pay. He must have had some purpose in writing the acknowledgment, and in writing it on the note; no other than an intent to renew the note is apparent from or suggested by the terms of the acknowledgment, and the circumstances under which it was written. We therefore consider it sufficient under the statute.
The copy record of the Iowa court, appointing plaintiff executor of the will of plaintiff’s testator, is fully authenticated as required by the act of congress. By the laws of Iowa, the circuit court of each county had exclusive jurisdiction of wills, and of the appointment of executors, etc., and “the clerk in vacation shall have power to ap
We see no error in the decision of the court below, except as to the amount of the recovery, which seems much too large. We infer that the court allowed interest for the whole time, at 10 per cent, per annum. The true rule is to allow that rate on each note till it became due, and after that 7 per cent, per annum. The cause will be remanded, and the court below will modify its conclusions by estimating the amount to be recovered by that rule.