Lucas v. Thorington

| Ala. | Jun 15, 1843

COLLIER, C. J.

The accounts of the parties are made up of distinct items, and the acknowledgment of the justness of one, and a liability to pay, cannot withdraw the others from the influence of the statute of limitations, upon any other hypothesis than that the waiver of a defence, as to a part, precludes the defendant from defending as to the residue. No such ground has been assumed bythe defendant in error; but he insists that the laww'as correctly laid down in the circuit court, because the terms of the admission showq that the statute was not intended to be relied on, but the object of the parties w'as merely to confine the litigation to the question of the legal liability of the defendant below, to account for the money advanced upon the order to Bynum, without regard to the length of time since the transaction took place. Such may have been the object of the parties, but we can only know their intentions from what they have expressed in writing. What then has the defendant said? That he admits the correctness of the plaintiff’s account, with the exception of the item to which we have referred — that he denies to be correct. This admission, with its saving, cannot be construed to be a conditional promise, viz: that the defendant will pay all the plaintiff’s account if the latter will establish the part that is disputed. In respect to the part denied to be just, there is no admission or promise, but a protestation of its injustice, and a consequent unwillingness to pay it.

In tfiis view of the facts, it is clear that there is nothing that amounts in law, to such a promise, as will take the case out of the statute. The leading cases on this point, are collected and the result stated in Crawford and another v. Childress’s ex’rs, [1 Ala. Rep. N. S. 488.] There it was held, that « an acknowledgement which will revive the original cause of action must be unqualified and unconditional. It must show positively that the debt is due in whole, or in part. If it be connected with circumstances, which in any manner affect the claim; or if it be conditional, it may amount to a new assumpsit, for which the old debt is a sufficient consideration; or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it must be shown.” So “ if there be no express promise, but a promise is to be raised by implication of law, from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. If there be any accompanying circumstances which repel the presumption of a promise, or intention to pay; if the expressions be equivocal, vague, and indefinite, leading to no certain conclusion, but at best, to probable inferences, which may affect different minds in different ways, we think they ought not to be received as evidence of a new promise to revive the cause of action.”

Here there is no acknowledgment of a present or past liability as to the five hundred and twenty dollars, but an explicit denial of both; and for this reason, the case cited, is conclusive against the plaintiff upon the evidence in the record. The judgment is consequently reversed, and the cause remanded.

CLAY, J. — Not sitting.