127 Iowa 459 | Iowa | 1905
The petition, which was filed December 9, 1903, declares, upon two promissory notes, and seeks the foreclosure of a mortgage, and is stated in two counts. In the first count it is alleged that on June 29, 1888, the defendant James McGrath made and delivered to plaintiff’s assignor his promissory note for $2,250, payable five years after date, with interest at 7 per cent, per annum, which note is now owned by the plaintiff, and is due and unpaid. In the same count plaintiff further alleges that on June 30, 1902, the defendant James McGrath made and delivered to plaintiff another promissory note in writing for $28.75, which note it is further alleged was given for interest accrued on the note first described, and the instrument is set out in said first count for the purpose of showing an admission in writing that the principal debt was then unpaid, thus avoiding the plea of the statute of limitations thereon. The second count declares solely upon the note of $28.75 above mentioned. Judgment is asked for the unpaid balance on both notes, and foreclosure is prayed of a mortgage alleged to have been given by James McGrath and his wife, Ann Mc-Grath, at the date of the first note, to secure its payment. The defendants demurred to each count of the petition on the ground that the allegations thereof show the debt sued upon to be barred by the statute of limitations, and for the further reason that the pleading shows a misjoinder of causes of action and of parties, and because the two counts are inconsistent and contradictory. The district court sustained the demurrer to the first count of the petition, and overruled
It is an accepted doctrine that an acknowledgment of the existence of a debt is allowed to remove the bar of the Statute, because such acknowledgment or admission carries with it an implied promise to pay. For that reason the acknowledgment must be express, clear, and direct, for it will
None of the cases cited by the appellant from this court go farther in recognizing the competency of parol testimony than we have above indicated. In Miller v. Beardsley, 81 Iowa, 720, the defendant wrote to the plaintiff stating that he had paid plaintiff’s agent the interest on $9,000, and referred, to interest not yet due and to a note or notes which he “ had not yet paid.” In McConaughy v. Wilsey, 115 Iowa, 589, the defendant wrote, making express reference to a note, and promising to “ try and pay it this fall.” The acknowledgment relied upon in Campbell v. Campbell, 118 Iowa, 131, was contained in a letter containing a remittance, of which the writer says, “ I thirds it pays the interest on my note to February, 1892,” a date then in the future. In First National Bank v. Woodman, 93 Iowa, 671, the writing was also contained in letters remitting money to “ pay interest on notes,” and other letters stating that the writer hoped to be “ able soon to pay the interest, . . . and, if possible, to pay the principal.” In each of these cases it will be readily seen there is a clear and express reference by the defendant, in? writing, to the existence of an unpaid indebtedness, the obligation of which is acknowledged by him; and in each case parol evidence was held admissible to identify the particular note or other form of indebtedness thus acknowledged. Beyond this well-established rule, we have never gone, nor can we do so without disregarding the statute. In Wise v. Adair, 50 Iowa, 104, we said with refence to an alleged written acknowledgment, “We should not extend the defendant’s liability beyond what he admitted in writing.” In other words, it is not competent to add by parol anything or any amount to the liability there admitted. In Nelson v. Hanson, 92 Iowa, 356, we reviewed our earlier
If, then, a partial payment is to be no longer construed as an acknowledgment of- the debt or promise to- pay it, it is difficult to frame the statement of any good reason for giving such effect to a mere promise to make a-partial payment. The Hale Case, last above cited, differs but little in principle from the one before us. There the defendant, the maker of a promissory note, made a payment to the holder, and himself wrote and signed an indorsement thereof
Tbe judgment of tbe district court is upon both appeals affirmed.