Higdon v. Stewart

17 Md. 105 | Md. | 1861

Tuck, J.,

delivered the opinion of this court.

The defendants’ first exception presents the question, whether the evidence of Day was sufficient to remove the bar of the statute of limitations? Upon a careful re-examination of the cases so often reviewed in this court, we are of opinion that the point ought to have been decided with the defendants below.

What passed in the presence of witness, between Higdon and Stone, and the subsequent remarks of Higdon to Day himself, must be treated as portions of the same conversation or transaction; and, indeed, if taken separately, the result would not be different. Whether they were sufficient for She purpose for which the evidence was offered by the plaintiff, must depend on the inquiry, did they amount to “an admission of a present subsisting debt?” of which character must be an acknowledgment, to take a case out of the statute. Frey vs. Kirk, 4 G. & J., 509.

We consider this case as covered by the principle established, and over and over recognized in this court, that where the debtor makes an acknowledgment, accompanied by a qualification or declaration, which, if true, would exempt him from a moral obligation to pay, he will not be bound. Oliver vs. Gray, 1 H. & G., 204. It appears that these parties had accounts for several years — Higdon acting as deputy sheriff for Stewart, making collections and performing other services, with no agreement as to his compensation, and no settlement, except that he had made payments for moneys collected. It is manifest that if they had disagreed, and Stewart had sued Higdon in his life time, the latter could have discharged himself only by proving the value of his services, and the payment of the sums for which he might claim credit. These would have been the basis of a set oil' or discount, and if the services happened to be barred by limitations, or he could not produce proof ol their value, or of his payments, the case deprecated by the court in Oliver vs. Gray, would have arisen. Higdon would have bound himself, while his own declarations would not ho.ve revived his remedy against Stewart; and thus he might have been compelled to pay a claim on his own admission, when most clearly the case, as stated by himself, if true, would not entitle the plaintiff to recover. These views were expressed in Mitchell vs. Sellman, 5 Md. Rep., 376, and Lockes’ Adm. vs. Sasscer, 8. Md. Rep., 374.

As we have said, the declaration or acknowledgment must be taken as a whole, and it cannot be disproved as to any part; offered by the plaintiff as his proof,, he will not be allowed to adopt the admission and reject the qualification. The declarations indicate that Stewart had presented an account which Higdon deemed incorrect, for he said to Day,, if he was to settle according to Stewart’s ideas, he would owe him a smart sum of money, and in the same interview he said he did not think he owed him any thing. How an implied promise to pay a debt can be imputed to a man who says he does not think he owes any thing, it is difficult to perceive. We suppose Higdon was willing to have had a fair settlement, but his remarks show what he considered proper elements of a fair settlement; there was much to do and he did it; he had carried prisoners to Baltimore, and he thought he was entitled to half the profits; he had paid money-and had receipts for all his payments, except one hundred dollars; these, doubtless, he deemed fair demands by way of discount or set off, and if his pretensions were true, he was under no moral obligation to pay, unless they were allowed; and the law does not charge him by admissions that will not bind the other party, so as to prevent him from interposing defences which might not have been in the power of Higdon to meet..- If he had said the debt was once due but had been paid, it is clear that the admission would not have revived the remedy. The qualification or accompanying declaration must be taken as true, and cannot be disproved by showing that he was mistaken in supposing it had been paid. Oliver vs. Gray, 1 H. & G., 219, 220. And so if had said he had a set off against it. We think the meaning of this acknowledgment is, that the debt was discharged by payments and his claim for services rendered, which amounted to a denial of its existence at the lime of the conversation.

But it is said his denial was not unqualified; that he admitted fifty dollars to be due, which opened the whole account between them, [t is true, that where a party admits his indebtedness generally, a promise to pay a particular sum need not be proved. But here the admission is limited to a precise amount; is not the party offering the admission bound by the declaration as made? He cannot disprove it by showing he owed more, nor can he segregate one part from the other. He said he did not think he owed any thing; again, that he did not think he owed him more than fifty dollars; which we take to mean this, that he thought he owed him nothing, but if he owed any thing, it was not more than the sum stated. If we say that, under this loose conversation, the plaintiff may recover a thousand or more dollars, if the plaintiff can prove that much as originally due, would it not be turnihg the man’s words into something that he did not say, by construing his admission, qualified as it was, into a promise to pay a much larger amount, which his other remarks clearly, as we think, show he deemed an unjust demand? It is of no consequence that he did not speak confidently of his owing nothing, but merely expressed his opinion. The plaintiff offers these opinions, and cannot discard them from consideration any more than the other parts of the conversation.

(Decided March 27th, 1861.)

The second exception becomes unimportant, for as much as by it the defendants, upon all the proof, offered to submit themselves to a verdict for part of the demand, when, as we think, they were not liable at all, and we may pass it without further notice.

Upon the best reflection we have been able to bestow on the case, we take these views to be in accordance with the decisions of this court, and, as the evidence was not sufficient to remove the bar of the statute, a procedendo will not be ordered.

Judgment reversed.