71 P. 829 | Kan. | 1903
The opinion of the court was delivered by
It is conceded that this action is barred unless the letter set forth in the foregoing statement constitutes a statutory acknowledgment of an existing liability. The statute prescribes that it must be a written acknowledgment of an existing liability, signed by the party to be charged thereby. (Code, §24; Gen. Stat. 1901, §4452.) This provision has been frequently interpreted and applied, and it has been held that the acknowledgment must be distinct, unequivocal, and without qualification, and that nothing less than a direct admission of a present existing liability is sufficient. (Hanson v. Towle, Adm’r, 19 Kan. 273; Elder v. Dyer, 26 id. 604, 40 Am. Rep. 320; Gragg v. Barnes, 32 id. 301, 4 Pac. 276; Haythorn v. Cooper, 65 id. 338, 69 Pac. 333.)
A mere mention of an indebtedness, or a suggestion with reference to it which does not distinctly recog
“Nearly all my creditors have been very lenient and are disposed to be so, but a few required payment, and by great sacrifice I have met their demands. I can do nothing more now in that line. I regret very much that you should suffer from my son’s failure, and if it was possible I would protect you. I assure you that if it is ever in my power to do so I will remember you among the first.’’
The reference to his creditors is too general and indefinite to be regarded as a sufficient recognition of liability. In this part of the letter he expresses regret that Harbach, the holder of the paper, should suffer from his son’s failure, and he accompanies it with the statement that if it were possible he would protect Harbach. The natural implication of the language is that he would protect Harbach against
It will be observed that he says nothing about his own liability to Harbach, nor anything from which an admission of an existing liability is necessarily inferable. The language is more nearly a recognition of the son’s liability than of his own, but, in any event, there is not that direct, unequivocal and unqualified admission of a present existing liability of himself necessary to take the case out of the statute.
The judgment of the district court will therefore be affirmed.