McDonald v. Grey
29 Tex. 80
Tex.
1867
Check Treatment
Moore, C. J.

It is free from all doubt that an acknowledgment which will, by its immediate effect, take a debt out of the bar of the statute ‍​​​‌​‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​​​‌​‌​​‌​​‌‌​‌‌​‌​‌‌​‌‍of limitation, must be clear and unequivocal, and neither qualified by conditions nor limitations. (Smith v. Fly, 21 Tex., 353; 2 Pars. on Notes and Bills, 469.)

The terms upon which the debtor predicates his promisе or undertaking to pay such a debt are entirely within his own option and discretion, and the creditor can only avail himself ‍​​​‌​‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​​​‌​‌​​‌​​‌‌​‌‌​‌​‌‌​‌‍of the new promise upon the stipulations with which it is сoupled by the debtor; and the burden of showing that this has been done is upon the creditоr. (Mitchell v. Clay, 8 Tex., 443; Smith v. Eastman, 3 Cush., 355; Ang. on Lim., 291.)

Whether made before, or after the bar of the statute is completed, the creditor cannot avail himself of an acknowledgment or promise upon condition, or as a matter of compromise, unless it is accepted within ‍​​​‌​‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​​​‌​‌​​‌​​‌‌​‌‌​‌​‌‌​‌‍the time and upon the terms proffered. This fundamental doctrine in respect to all offers of compromise is as essential and as well recognized in cases of this kind as in any others. (Pool v. Relfe, 23 Ala., 701.)

*84But, on the other hand, it must he admitted, that an unconditional aсknowledgment of a part of the debt, although coupled with a denial of liability for the remainder and a refusal to pay it, if not made as a qualification of the admissiоn, will take so much of the debt as is acknowledged out of the statute. ‍​​​‌​‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​​​‌​‌​​‌​​‌‌​‌‌​‌​‌‌​‌‍The law will imply a рromise to pay the amount admitted to be due. It is not incumbent upon the creditor tо. show that he has admitted the validity of the objections of the debtor to that part оf the debt which he repudiates, or to show that he had relinquished his claim to it. (Grayham v. Keys, 29 Pa., 189; Hart. Dig., Art. 2388;) [Paschal’s ‍​​​‌​‌‌​​​​​‌​‌‌‌‌​​‌​‌‌​​​​‌​‌​​‌​​‌‌​‌‌​‌​‌‌​‌‍Dig., Art. 4617a, Note 1027a.]

The only question of the least embarrassment presented by the record of this case is, as to the construction and true import of the lettеr of the appellant, which is claimed by appellee to be an acknowledgment of the justice of that part of the original debt for which he sues. Was the lettеr intended as a proffer of compromise of a dispute between the pаrties as to the validity of the note or original debt and appellant’s liability for its payment? Was the admission of a willingness to pay the principal made upon the condition of a release of the interest? Or was it the purpose of appellant, while he admitted freely and unconditionally the justice of the principal of the debt, to appeal to appellant’s liberality and sense of justice as to thе interest? We are unaided in the construction of this letter by the light of th§ circumstances under which it was written, beyond those developed by its contents. There may have been, аnd probably were, circumstances, with the aid of which we might easily determine the true import which it bore in the minds of the parties at the time it was written and received. Guided merely by the letter itself and such facts as are in the record, we are lead to the сonclusion, that it was properly construed by the judge in the court below to import an unconditional acknowledgment of the prin*85cipal of the debt, and therefore furnished a valid cause of action for that amount. Previous to the' letter, it is not shown thаt appellant claimed or supposed that he could make any defensе against a recovery by appellee for the entire debt; nor does the letter induce the belief that he set up any such claim. On the contrary, we think the reversе of this may be fairly inferred. He seems to appeal^ in view of the hardship of his cаse—the losses which had sustained—to appellee’s generosity and liberality, and not to any legal right on his part. It is true, he subsequently refused to pay the principal and intеrest, when they were demanded on the note and this letter. But this, it is probable, was after he supposed he was protected by the statute. At least he gave no explаnation of the grounds of his refusal, although it was stated in the testimony which he himself gave in the сase.

It appears from the record, that the verdict and judgment are for a larger amount than appellants were entitled to recover, but a remittitur having been filеd in this court for the excess, the judgment will be reformed and rendered at appellee’s cost for the amount adjudged below, less the sum remitted.

Reversed and reeormed.