38 Ill. 430 | Ill. | 1865
delivered the opinion of the Court:
The account, to recover which this suit was brought, accrued more than five years before the suit was instituted. The defendant filed, amongst others, a plea of the statute of limitations, and to it the plaintiff replied a new promise made within five years. There seems to be no question that all of the items charged in the account were purchased more than five years before this suit was commenced. But it is insisted that a new promise may be inferred from the various efforts which were made to settle, in none of which was the justice of the account denied, except as to the charge for the brandy, and the want of a sufficient credit for commissions on the sale of coal for the company. The evidence also shows that appellant, on more than one occasion, stated that if they would correct the erroneous charge for the brandy and allow him what he claimed for commissions, he would settle. But the company never corrected the account as he claimed they should; nor does it appear that he otherwise ever promised to pay the ac-. count or any portion of it.
This, at most, was but a conditional promise to pay a portion of the claim. If, however, it should be so considered, the company never performed the condition, as they did not deduct the charge for brandy and allow the commissions, but at all times claimed these items, and refused to allow for commissions more than fifty or sixty dollars. If this was a conditional promise, the company could not claim the performance until they complied with the condition, which they never did.
To remove the bar of the statute it was incumbent upon appellant to show an express promise to pay the money, or a conditional promise, with a performance of the condition, or an unconditional admission of the justice of the debt. Eeitlier of these has 'been shown in this case. There was not an express promise to pay, nor was there an unqualified admission that the debt was due and an intention to pay. On the contrary, appellant always contested the correctness of the account, and the company were unwilling to accede to his views. We are, therefore, of the opinion that the finding was against the law and the evidence, and the judgment must be reversed and the cause remanded.
Judgment reversed.
