160 P. 1192 | Utah | 1916
The plaintiff, in the complaint, which was filed August 3, 1915, in substance alleged that on the 8th day of October, 1908, the plaintiff sold to the defendant, at his request, certain goods, wares, etc., for which the defendant agreed to pay the sum of $231.50, and that no part of said sum had been paid. The plaintiff, in order to avoid the plea of the statute of limitations as a bar to the action, which bar was complete at the end of four years from the 8th day of October, 1908, also alleged as follows:
‘ ‘ That less than four years before the date of the commencement of this action, to wit, on June 14, 1913, the defendant acknowledged the existence of the said debt by filing his peti*580 tion in bankruptcy in tbe District Court of the United States •for the District of Utah, and in schedule A-3 of said petition, at or about that time made, subscribed, and sworn to by the defendant, he scheduled the claim and account above set forth as a debt due from him to the plaintiff; that the defendant failed to petition for a discharge in said bankruptcy proceedings.”
Plaintiff prayed judgment for the amount, with legal interest from October 8, 1908.
The statute (Comp. Laws 1907, section 2898) which is relied on by counsel reads:
“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby. ’ ’
Counsel for appellant has gone into the subject most thoroughly, and has cited many cases both for and against his
Section 2898 is taken from Kansas. See Kan. Gen. St. 1868, p. 634, section 24, which has remained in force in that state continuously and has been before the Supreme Court of Kansas many times, as appears 'from the following cases: Elder v. Dyer, 26 Kan. 604, 40 Am. Rep. 320; Pracht v. McNee, 40 Kan. 1, 18 Pac. 925; Clark v. King, 54 Kan. 222, 38 Pac. 281; Disney v. Healey, 73 Kan. 326, 85 Pac. 287; Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479.
In Elder v. Dyer, supra, the Supreme Court of Kansas had under consideration a letter written by one who signed a note as co-maker, and in which letter he referred to the note in question and requested the payee thereof to “write him (the principal debtor) a sharp letter, and demand of him an indorser there. I do not want to be held longer on the note.” The Supreme Court of Kansas held that what was stated in the letter was a sufficient acknowledgment of an existing liability to take the case- without the bar of the Kansas statute. In the course of the opinion (26 Kan. 610, 40 Am. Rep. 320), in speaking of what is a sufficient acknowledgment of an existing liability under the statute, it is said:
"No set phrase or particular form of language is required; anything that will indicate that the party making the acknowledgment admits that he is still liable on the claim, that he is still bound for its satisfaction, that he is still held for its liquidation and payment, is sufficient to revive the debt or claim; and there is no necessity that there should also be a promise to pay the same, either express or implied.”
The court goes on at some length to show that in that regard the. Kansas statute differs from many others where, in addition to an acknowledgment of the debt, a promise to pay it is necessary.
The same question in the same form was before the same
In Bissell v. Jaudon, 16 Ohio St. 498, and in Coffin v. Secor, 40 Ohio St. 637, the Supreme Court of Ohio, under a statute like that of Kansas, and where the question before the court was the same as the one before the Supreme Court of Kansas, arrived at a like result.
The same result was reached by the Supreme Court of. Nebraska as appears from Harms v. Freytag, 59 Neb. 359, 80 N. W. 1039.
The Supreme Court of Mississippi also arrived at the same conclusion under a similar statute and conditions. Beasley v. Evans, 35 Miss. 192.
' In Ft. Scott v. Hickman, 112 U. S. 150, 5 Sup. Ct. 56, 28 L. Ed. 636, the Supreme Court of the United States, in a case originating in Kansas, followed the decision in Elder v. Dyer, swpra.
A few other cases could be added to the foregoing, but it is not deemed necessary to do so.
By many of the courts, in passing upon statutes where a new promise is required, it is, however, held that a mere acknowledgment of an existing liability is insufficient to revive the debt. We need not refer to those cases.
It will be observed that the precise question that is before us now was not before the courts in the foregoing cases to which reference has been made, and therefore is not passed on, unless it be held that any acknowledgment of an existing liability under any and all circumstances is sufficient both to toll the statute and to revive the claim in ease the statute has fully run. Counsel for plaintiff, with some force, contends that such is the necessary effect of the eases to which , reference has been made. Digressing from that question for a moment, we find that there are cases in which the precise question now under consideration was before the courts, and where different courts, apparently, have arrived at different conclusions. In re Resler (D. C.), 95 Fed. 804; Roscoe v. Hale, 7 Gray (Mass.) 274; Christy v. Flemington, 10 Pa. 129, 49 Am. Dec. 590; Hidden v. Cozzens, 2 R. I. 401, 60 Am. Dec. 93, and in Nonotuck Silk Co. V. Pritzker, 143 Ill. App. 644,
“All creditors should he scheduled, even those barred by the statute of limitations. To schedule the latter is not a revival of the debt, although it may be different in case of voluntary bankruptcy, where it afterwards happens that the bankrupt was not insolvent.”
In 1 Loveland on Bankruptcy (4th Ed.) 374, it is said:
“It is proper to include creditors whose debts are barred by the statute of limitations. The insertion of such a debt in the schedules does not revive the claim.”
Upon the other, hand, it was held by the trial judge in Stuart v. Foster, 18 Abb. Prac. (N. Y.) 305, that the listing of a promissory note by the debtor in a voluntary assignment for the benefit of his creditors was a sufficient acknowledgment of an existing liability to revive the debt. The same result was reached under a similar state of facts in Van Patten v. Bedow, 75 Iowa 589, 39 N. W. 907. In re Gibson, 4 Ind. T. 498, 69 S. W. 974, 4 Ann. Gas. 938, the Court of Appeals of Indian Territory held that, where an insolvent in filing a voluntary petition in bankruptcy scheduled a debt, by such act he waived the statute of limitations, and that the lower court did not err in denying his motion to expunge the debt from the schedule so filed by him. The same result was reached, under similar circumstances, In re Hertzog, Fed. Cas. No. 6433, and in Be Currier (D. C.), 192 Fed. 695, 27 Am. Bankr. R. 597. It is not deemed necessary to cite more cases, although such could bé done both for and against counsel’s contention.
“A waiver is the intentional abandonment of a known right.”
We think that is a correct definition of a waiver. True, when one fails to plead the statute of limitations in a pending
For the reasons stated, we are of the opinion that the District Court committed no error in sustaining the demurrer, and the judgment is therefore affirmed. Costs to respondent.