191 So. 916 | Ala. | 1939
The facts as stated by the majority of the Court of Appeals will be taken as true. They are thus stated: "In the instant case, there is an unqualified acknowledgment of the debt due from this defendant to this plaintiff. The declaration in the complaint is on that stated agreement. Under the decision hereinabove cited, the statute of limitations began to run on January 27, 1933, and this suit having been brought within six years from that time the plaintiff was entitled to recover and under the evidence was entitled to the general affirmative charge."
The writing in question is as follows:
"January 27, 1933.
"It is understood and agreed that Walter F. P. Harrison owes Addie Mae Mason Seven Hundred Thirty-Five ($735.00).
"In witness hereof we set our seals sign our names while being in good health and of sound mind.
"(Signed) W. F. P. Harrison
"Witness
"W. O. Vickery
"I agree that the above statement is true and correct.
"Addie Mae Mason."
The statute in question has remained unchanged since the Code of 1852, Section 2490, being Section 8964 of the Code of 1923, as follows: "What necessary to remove bar. — No act, promise, or acknowledgment is sufficient to remove the bar to a suit created by the provisions of this chapter, or is evidence of a new and continuing contract, except (1) a partial payment made upon the contract by the party sought to be charged before the bar is complete, or (2) an unconditional promise in writing, signed by the party to be charged thereby." [Numerals supplied.]
In Whitfield v. Hatch et al.,
"This statute is clear and unequivocal; says what it means and means what it says. It is of long standing first appearing in the Code of 1852, § 2490. Jordan's Adm'r v. Hubbard,
"It was intended not only to clarify the law, theretofore much in confusion, touching the words or acts which would constitute such new promise, express or implied, as to intercept the running of the statute of limitations, but also to specify the admissible evidence."
See Hendley v. First National Bank of Huntsville,
The pleadings in such cases (supported by a long line of authority) are stated as follows in 115 A.L.R. p. 779: "Although there is some authority to the contrary (as to which, see supra, III. a, heading 'Acknowledgment or new promise'), it seems generally to have been held that a plaintiff may rely on an acknowledgment or new promise to avoid a plea of the statute of limitations, under a general replication, without the necessity of a special replication, even in jurisdictions where it has been held necessary to reply other exceptions to the statute specially. This conclusion has been reached in the following cases: Alabama. — St. John v. Garrow (1835) 4 Port. 223, 29 Am.Dec. 280."
The declaration of admission of the debt or promise to pay under our statute was considered in 1856 in Evans v. Carey,
In Evans v. Carey,
"We regard the principle too well settled, at this day, to admit of controversy, that to revive a debt barred by the statute of limitations, there must be a promise by the debtor to pay the debt. This principle was fully discussed and settled in the case of Bell v. Morrison, 1 Pet. [351], 357 (
"In the present case, there is no admission of the debt."
In Chapman v. Barnes,
"The letter of February 4, 1882, from Barnes to Amason, is lacking in the essentials of an unconditional promise to pay necessary to the removal of the statutory bar already perfect, in that it fails to state the amount of indebtedness, and fails to set forth a promise to pay any sum certain. Its assurance to the creditor that, 'if you need or want more, call for it without hesitation, and you shall have it,' not stating the amount due or how much 'more' would be paid on demand, does not operate as such promise as will take any sum from under the ban of the statute. * * *
"This leaves for consideration on the question whether the bar of the statute was removed by a written promise of defendant, the letters of October 15, 1882, and September 23, 1883, to Mrs. and Mr. Watrous, respectively. They are certainly not wanting in acknowledgments of the indebtedness, and are, it may be admitted, sufficiently specific as to the amount thereof. They express a desire and expectation to pay it. They evince a purpose and willingness to pay it after a time. They contain propositions looking to a settlement of it, at one time, by the conveyance of certain landed interests to the heirs of the intestate, and, at another, through the satisfaction of a claim which had been or would be asserted against the estate. But neither of these letters can be construed into an unconditional promise to pay the debt, nor into an acknowledgment of its existence, accompanied with an unequivocal expression of a willingness to presently pay it, * * * ."
This Chapman case, supra, was cited in Whitfield v. Hatch, supra, and in May et al. v. Mathers,
"It has been declared by this court that an acknowledgment under section 8964 'must go the length of admitting the present existence of a debt, which the party is willing to pay' and that there is no rule which requires that its proof 'shall be different in measure, or more strict than that which is required to establish any disputed fact in a civil suit.' Strickland's Adm'r v. Walker,
"There is authority to the effect that 'an assignment of a particular asset to be applied to the payment of a particular debt constitutes such acknowledgment of the debt as to take it without the statute' of limitations. 37 Corpus Juris 1115, § 5941, note 83.
"The deed here in question recites a consideration of $1,050, and it is not contended that the property so conveyed was worth more than that. The evidence satisfactorily shows that there was a bona fide debt owing to the grantee, J. L. May, in an amount at least equal to the recited *500 consideration. That of itself removed the bar to that extent. * * *
"An assignment to a creditor of specific property to pay or secure a specified sum is as said in Chapman v. Barnes,
The word "owes" is used in the written acknowledgment here in question. For the early application and definition of the word "owes" as employed under the statute in such instruments see Strickland's Adm'r v. Walker,
The foregoing is sufficient to indicate that, in our opinion, the majority view expressed by the Court of Appeals is a proper interpretation of the statute, § 8964, Code of 1923, and in accord with the trend of later decisions we have indicated as applied to the instrument above set out and the facts on which these decisions were rested. The petition for certiorari is, therefore, denied.
Writ denied.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.