87 Iowa 341 | Iowa | 1893
I. The following is a copy of the note upon which the suit was brought:
“$700. Ames, Iowa, September 1, 1877.
“Two years, after date, for value received, we, or either of us, promise to pay to the order of S. S. Drake seven hundred dollars, with interest, payable annually, at nine per cent, per annum.
“A. B. Thomas.
“A. U. Stuart, Surety.”
It appears that A. B. Thomas, the principal in the note, removed from this state to the state of Nebraska,
Section 2539 of the Code is in these words: “Causes of action founded on contract are revived by an admission that the debt is unpaid, as well as by a new promise to pay the same; but such admission or new promise must be in writing, signed - by the party to be charged thereby.” The language employed in reference to the new promise is explicit. It is absolutely necessary that the admission or new promise must be “signed by the party to be charged thereby.” The defendant did not sign any of the writings by which he is sought to be charged. This appears to us to be decisive of the question; and this is the rule by the great weight of authority, even under statutes of limitation providing that part payment will arrest the operation of the statute. See 13 Am. and Eng. Encyclopedia of Law, p. 762. In view of the express requirement of our statute that the party to be charged must sign the instrument, it is unnecessary to further consider the question.
We discover no error in the record, and the judgment is AFFIRMED.