41 Barb. 495 | N.Y. Sup. Ct. | 1864
Lead Opinion
The acknowledgment need not express any intention to pay. An intention to pay is to be presumed. It is of very little consequence what was the intention of the debtor in this respect. If he acknowledges the existence of the debt, in writing, the provisions of the law are met, and the statute of limitations has not attached. In the absence of proof that other demands existed to which the acknowledgment of the defendant might apply, the presumption is that it applied to the demand proven. (Davenport v. Gilbert, 6 Bosw. 180.) The evidence adduced removed the uncertainty or doubt, if any existed, and was in my opinion admissible.
There is nothing in Winchell v. Hicks (18 N. Y. Rep. 560) adverse to a recovery in this case.
The plaintiff is entitled to judgment, with costs.
Clerke, J. The chief difficulty which first occurred to me in this case was the want of an explicit acknowledgment, specifying the debt. But I find in the second letter of the defendant, in a postscript, a sufficient identification of the debt. He says the amount of the plaintiff’s debt, at 20 per cent, would be $108.09 cash. On referring to the note we find it to be $540.42, which at 20 per cent would be the .amount mentioned.
Dissenting Opinion
The provision of the code is, that “ no acknowledgment or promise shall he sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby,” &c. Now, although it is certainly to be inferred, from the letters written hy the defendant to the plaintiff, that he was indebted to the plaintiff in a certain amount, yet the note in suit is not mentioned in either of the letters; nor is there any thing in either of the letters to show what evidence of indebtedness the plaintiff had against the defendant. The letters do not specify or refer to the claim of the plaintiff, so that you can tell from them whether the plaintiff held the defendant’s note, bill or even any written contract. The plaintiff, for the purpose of giving effect to the letters as a written acknowledgment of his debt, thought it necessary, or at least prudent, to show by parol evidence, that the note in suit was the only debt or demand he had against the defendant, and that the letters referred to it. Now, could these letters be made effective as a written acknowledgment, by parol evidence ? I must confess, I have serious doubts whether they could. Would it not tend to defeat what we must suppose to have been the intention and policy of the requirement of the law, to hold that the writing can be assisted by parol, to the extent required, to make the letters a ivritten acknowledgment in this case ? (See Wright v. Weeks, 25 N. Y. R. 153.)
But I do not think it is necessary to decide the case upon the point which has been suggested. If the note in suit had been mentioned and described in the letters, they would not have saved it, I think, from the operation of the statute of limitations.
In Winchell v. Hicks (18 N. Y. Rep. 560) it is said to be settled, “ 1st. That the action must be sustained on the new
Certainly the acknowledgment must be such that an intention to pay can be inferred from it; or at least such an acknowledgment as is consistent with an intention to pay. Now all you can infer from the defendant’s letters is, that he has been thinking of taking the two-third act, but had rather compromise with his creditors by paying them 20 per cent; that he probably could borrow the money to pay 20 per cent of all his debts, and he offers to the plaintiff 20 per cent. Even ■this offer I understand to be conditional, that is, on condition that his creditors, or his creditors generally, agree to take 20 per cent. How can a promise or intention to pay the plaintiff’s debt be implied from these letters, when the defendant offers to pay 20 per cent only, and that offer is conditional p It is rather to be inferred from the letters that the defendant did not intend in any event to pay more than 20 per cent, and that his willingness or intention to pay the 20 per cent depended upon all his creditors, or his creditors generally, consenting to take 20 per cent.
In my opinion there is no ground for the distinction suggested by the counsel for the plaintiff', between an acknowledgment or promise made after the debt has been barred by the statute of limitations, and an acknowledgment or promise made before the statute has attached. No such distinction is made in the provision of the code, and such a distinction is ■repudiated in several cases. (Shoemaker v. Benedict, 1 Kern. 186. Tompkins v. Brown, 1 Denio, 247. Dean v. Hewit, 5 Wend. 257.) There should be judgment for the defendant, and that the complaint be dismissed with costs.
Judgment for plaintiff.
Leonard, Clerke and Sutherland, Justices.]