59 Neb. 359 | Neb. | 1899
H. J. Harms brought this action in the district court of Nemaha county to recover on a promissory note executed by F. H. Freytag as principal, and by D. Oestman and F. Schlange as sureties. Oestman was not served with summons. Freytag made default, and Schlange answered, alleging that the action was barred by the statute of limitations. The court tried the case without a jury, and found the issue raised by the answer in favor of Schlange. Judgment was rendered on the finding, and the plaintiff, being dissatisfied, brings the record*
“South Auburn, Neb., April 12, 1894.
“Dear Friend H. Harms: You have written me, last harvest, that the note from Fr. Freytag is not yet paid, the one that I and Oestman have undersigned. I would like to ask you to collect in the money as soon as possible, for 1 will no longer be held good for the note. If you will let him have the money any longer; so let him [Freytag] give you a new note. I like you to tarry no longer with the matter, for it is high time, for the note is very likely due for quite a long time. If you do not collect in the note now, then I will not have anything no more to do with it.
“Your friend, F. Schlange.”
This writing is, we think, a sufficient acknowledgment, within the meaning of section 22, Code of Civil Procedure, which declares: “In any cause founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made in writing, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise.” In the letter above set out Schlange says that he is informed the note has not been paid. He asks Harms to collect the money due upon it, and declares that he “will not longer be held good for the note,” in case it be not promptly collected. This is a plain admission that he was liable on the note when the letter was written, but that his liability would presently cease unless payment should be enforced. In Elder v. Dyer, 26 Kan., 604, it was held that a letter con
Reversed and remanded.