Penley v. Waterhouse

3 Iowa 418 | Iowa | 1856

Weight, O. J.

Brevity may be consulted, by considering the errors assigned in this case, under two heads. First. Were the instructions asked, improperly refused ? and if not, Second. Was the verdict warranted from the evidence ? Before coming to the consideration of the first question, however, we propose to dispose of some positions assumed by appellant, which can hardly be said to be involved in the instructions asked. ^

He claims that the statute of 1843, contains no provision for reviving a. debt by a subsequent promise, and that, therefore, such promise will not bind the defendant, so as to authorize the court to enforce the collection of the debt. We are not awqtre of any authority which will sustain this position. It has been uniformly held, that a debt may be thus revived, and yet, certainly, none of the earlier statutes, either in this country or England, contained such a provision. The statute of 21 James I, chapter 16, which our statute of 1843 followed, had no such provision; and yet it was never doubted but that a subsequent promise would, and did, take the debt out of its operation. The subsequent promise is. a new evidence of the debt, and being proved, will maintain the action. It is to be considered as a new promise, founded upon the previous debt as a consideration, and supports the action, independent of the original promise — a new agreement founded upon the original consideration. Bell v. Morrison, 1 Pet. 360 ; 4 Bacon Abrig. 483. And another view of it is, that such promise is a waiver of the statute, or the bar created by the statute, just as a party may waive any other right, privilege, or defence he may have under the law. Bangs v. Hall, 2 Pickering, 368. The lapse of time, or the statute, does not extinguish the debt, but bars the remedy; and this remedy thus barred, may be revived by the subsequent promise, though the statute may make no such provision.

None of the authorities cited by appellant, as far as we have been able to examine them, sustain his position. The statute of 9 Geo. IY, chapter 14, referred to, certainly does not aid him. That statute only provides, (so far as material to be here considered), that the subsequent promise or admission, should be in writing. It only changed the manner of proving the promise, but by no means tends to establish the proposition, that before that statute, a verbal promise would not have been sufficient to take the debt out of the operation of previous statutes of limitations. Chitty on Contracts, 818-; 14 Pickering, 888. In short, we may say, that the doctrine that a subsequent promise will revive the statutory bar, obtains, not because statutes of limitation* either in this country or England, have so provided, but because such promises have uniformly been held to obviate the effect of such statutes.

In considering the instructions asked by defendant, we will first direct our attention to the second, as that appears to have been refused for reasons- that apply to it alone. The Code, (§ 1661,) enacts that the limitations provided for in the previous section of the chapter, shall not apply to actions founded on contract, if from the answer of the defendant, or from his testimony as a witness, it appears affirmatively that the cause of action still justly subsists. The plaintiff, in his replication to the plea of the statutes of limitations avers, that since the first day of July, 1851, and before the commencement of this suit-, the said defendant admitted that the said plaintiff’s cause of action still justly subsisted, and also avers, that the said cause of action does, in fact, still justly subsist. These averments are distinctly denied in the rejoinder. In view of this section of the Code, it appears, that the court instructed the jury that the issue so made by the replication and rejoinder, was immaterial, and plaintiff’s counsel acquiesced in this disposition, and claimed nothing by that issue. Under such circumstances, was it error to-refuse the defendants second instruction? We think not. We are unable to see how he could possibly be prejudiced by such refusal. There was no claim by plaintiff, that defendant had, either by his answer, or his. testimony as a witness, admitted that the cause of action still justly subsisted. Under the circumstances, these averments in the plaintiff’s replication, if material, could avail nothing; and that issue having been entirely withdrawn from the jury, it was unnecessary to give any instruction on the subject.

We next inquire, whether the fourth and last instruction, was properly refused ? The appellant, by his instruction, claims, that to revive a debt, the promise to pay must have been mad & after tbe debt is barred by tbe statute; and' that-a promise to pay, or an admission that tbe' debt-is unpaid, before it is barred, and while an actioii might be maintained, is not sufficient. We think that reason, as well as authority, justified the court' in'refusing this instruction;

Let us briefly consider the reasonableness of this instruction; Suppose that'before'the debt is'barred, the creditor is' induced to forbear prosecuting it, by the continued promises of the debtor to pay. Thus influenced, the creditor delays until'the -statute applies, dating from the maturity of the debt or note. After this; the debtor refuses to promise, and when sued, claims that his continued promises shall not'avail; be-' cause they were made before 'the' debt was'barred, and when he might have been sued, and but'for which he would have been. According to this' rule; does- he- not take advantage of that forbearance, by which'he obtained time on his debt— a forbearance too, extendedun consideration2 of-his promises or'admissions'that'the debt was unpaid. And if is to be'-r'e-collected, that if the appellant’s-position is'true, then it:applies to a written promise or admission made before the debt is barred, as well as a verbal one. For one argument used-in this part of the case'is,- that such a promise is only applied-' by-the moral'obligation that exists-to2pay the debt, and that-if the debt is -not barred at the time ■ such promise is made, no such-moral obligation exists, and the promise' therefore' fails, for the'want of a consideration to sustain-it. -' If this' argument is sound,- then, we'repeat, it could'make no differ-2' ence that the promise was in' writing,"for' it-'would fail for want of a consideration to support it, as would; the verbal promise. But it is difficult to see-the force of sueh'-an argument;' Why there is not as much- moral'obligatión-to pay the debt before;-as after, it is • barred; we cannot ■ perceive. It is said there is a legal obligation to pay, beforeit is 'barred, and we ask why is -this not Sufficient to'support the promise, and especially, if we have superadded the moral obligation. The new promise before the debt is'barred; may not give any additional force to the legal-liability to pay-r-but it may continue-that liability longer than it would have continued, but for such promise. There is as much to support the promise in one case, as in the other, and if either promise has the better consideration to support it, it is certainly not the one made after the debt is barred.

Neither do the authorities cited, sustain the appellant’s position. In Chitty on Contracts, 821, referred to, it is said, that although the statute of limitations bars the remedy after ■six years, the debt is not extinguished; it still exists, and the debtor is still under moral obligation to discharge it. He may, therefore, by a new promise to pay the debt, revive the original liability. So in Story on Cont., 1st ed. § 706, it is said that the operation of this statute may also be frustrated, by an acknowledgment of the existence of the debt, or by a new promise to pay it. This promise or acknowledgment, is considered as a new promise, founded upon the previous debt as a consideration, and must be sufficient in itself to support an action for the debt, independent of the •original promise. But neither of these authors intimate that the promise would not be sufficient, if made before the debt •was barred.

Nor can appellant claim to be aided in this position by the -oases of Danforth v. Culver, 11 Johns. 146, and Hill v. Henry, 1,7 Ohio, 9. The latter case turned for the most part, upon a peculiar statute of Ohio, and that it in no manner determines the question now under consideration, is sufficiently shown by the concluding part of the opinion. “ Upon mature consideration,” says Hitchcock, J., in delivering .the opinion, “we conclude that under the limitation laws of this-state, the acknowledgment and promise to pay a debt which is barred by the statute, does not revive the original cause -of action, but if a creditor would enforce collection, he must do it -by suit on the subsequent promise.” The case in 11 Johns. 146, does nothing more than recognize substantially the same doctrine as above quoted from Chitty and Story on Contracts.

The first and third instructions asked, present substantially the same questions, and may appropriately be considered together. And that question briefly stated, is, whether the Code, by section 1670, does more than declare the law as it stood before its enactment ? We think the determination of this question, and especially, if determined in the negative, disposes of all the matters contained in the two instructions as asked. Eor it is evident, that if the admissions in said instructions referred to, would have been sufficient to take the debt out of the bar of the statute, before the taking effect of the Code, then we need not consider whether that section would or would not have a retroactive effect. This section of the Code, provides that causes of action founded on contract, are revived by an admission that the debt is unpaid, as well as by a new promise to pay the same. Does this do anything more than to declare the common law rule ? We conclude not.

Erom the time of the passage of the first statute of limitation in England, it has been uniformly held, that a new promise to pay the debt, would have the effect of taking the case out of the statute. What should be the character of that promise — whether it should be clear, explicit, and express, or whether the promise might be inferred from slight circumstances — will be found to be much controverted. When, however, it was attempted to avoid the effect,of the statute, by proof of the acknowledgment of the debt, without any proof of a promise to pay, more difficulty and doubt arose. It was at one time held, that the acknowledgment, without a promise to pay, would not be sufficient. Afterwards, we learn, the acknowledgment of a debt was evidence from which a jury would be warranted in inferring a promise to pay, but was not a matter, if specially proved, on which a court would give judgment for plaintiff; and afterwards their courts went so far, as to hold that the slightest word of acknowledgment would take the case out .of the statute. See 11 Johns. 146, and the cases there cited. And we may add, that the decisions in England, show that at first, their courts hesitated in departing from what was regarded as the positive language of the statute, in admitting that an acknowledgment of the debt should take a case out of its operation. But that, having once given such an effect to an acknowledgment, these courts went to the other extreme, and permitted the slightest acknowledgment to revive the debt; in effect holding that -the statute was entitled to no respect, and that such defences should not be encouraged. We have an instance of this, in the .case of Quastock, assignees, &c. v. England, 5 Burr. 2630, where Lord .Mansfield is reported to have said, “ that the slightest acknowledgment is sufficient to take the case out of the statute;” and again, “ that in honesty, a defendant ought not to defend himself by such ,a plea.”

Some of the courts in this country, have followed these extreme cases, and manifested a like disposition to deny to the statute, any force or efficacy. This disposition is not general, however; and indeed we may say, that the tendency now is, not to explain away the statute, but to give itthe same force and respect, which is given to any other statute. And the .same is true of the English cases, even before the passage of the act of 9 Creo. IV, above referred to. Hence it may be now said to be well settled, that in order to take a case out of the statute, there must either be .an express promise, ox the acknowledgment of a subsisting debt, from which a promise of payment may be inferred. If, however, the debt shall be acknowledged ever so clearly, and the debtor expresses an intention not to pay, there can be no recovery. This is the repeated and express ruling in New York. Allen v. Webster, 15 Wend. 284; Sands v. Getstor,. 15 Johns. 511; Danforth v. Culver, 11 Ib. 146; and so it is ruled in Massachusetts. Bangs v. Hall, 2 Pick. 368; Munford v. Freeman, 7 Metc. 432 ; Sigourney v. Drury, 14 Pick. 390; Bailey v. Crane, 21 Ib. 323. This latter case refers to the one in 2 Pick. 368, and says that the doctrine there laid down, has been tested by experience, and is undoubtedly sound and wise; and that it has everywhere been acknowledged as sound law. That case decided, that to take a debt out of the statute, there must either be an express promise to pay, or an unqualified acknowledgment of a present indebtedness. In the latter case, the law will imply a promise to pay; and so the case in 14 Pick, supra, says, that such new promise may be expressed or implied, and a jury will be authorized and bound -to infer such promise, from a clear, unqualified, and unconditional admission of the existence of the debt, at the time of such admission, if unaccompanied with any refusal to pay, or declaration indicative of any intention to insist on the statute of limitations.

And the same rule would seem to be recognized in the Supreme Court of the United States, and in most of the states. Wetzell v. Bussard, 11 Wheat. 309 ; Moore v. Bank of Columbia, 6 Pet. 92; Bell v. Morrison, 1 Pet. 861; Cromwell v. Buckman, 7 Blackf. 537; Exeter Bank v. Sullivan, 6 N. H, 132; Perley v. Little, 3 Greenleaf, 97. In the case of Wetzell v. Bussard, 11 Wheat. 322, Ch. J. Marshall, uses this language: “It is contended on the part of the plaintiff, that he has proved an acknowledgment of the debt, and that such acknowledgment, according-to a long series of decisions, revives the original promise, or lays a foundation on which the law raises a new promise. The English, as well as American books, are filled with decisions which support this general proposition. An unqualified admission that a debt is due at the time, has always been held to remove the bar, created by the statute.” And in Seaper v. Taitón, 16 East, 420, Lord Ellenborough says: “ As to the sufficiency of the evidence of the promise, it was an acknowledgment by the defendant, that he had not paid the bill, and that he could not pay it; and as the limitation of the statute is only a presumptive payment, if his own acknowledgment that he has not paid be shown, it does away with the statute.” In Bead v. Wilkinson, 2 Wash. C. C. 514, it is held, that if the offer of the debtor, on a fairinterpretation, amounts either to a promise to pay, or to an acknowledgment of the debt, or some debt, it is sufficient to remove the bar of the statute. And again, it has been ruled, that from a general acknowledgment, where nothing is said to prevent it, a general promise to pay, may and ought to be implied; but where the party guards his acknowledgement, an implication will not arise. Chitty on Contracts, 821 and notes.

Leaving adjudicated cases for the present, let us see what is said by the text writers, as to the effect of an acknowledgment and a promise to pay. And as before remarked, it is clearly agreed, that if the'debtor acknowledges the debt, and promises to pay, this revives it, and brings it out of the statute. So also it has been held, that a bare acknowledgment of the debt, within six years of the action, (under the statute of James,) is sufficient to revive it, and prevent the statute, though no new promise was made. 4 Bacon’s Abrig. 483. This dictum, it will be observed, goes further than the more recent cases in this country, so far as the úse of the term hare is concerned. But as here used, we give it but little weight, the proposition being clear, that an acknowledgment is sufficient. So in Angell on Limitations, 228, it is said, that it is not necessary that the promise should be express ; it may be raised by implication of law, from the acknowledgment of the party, it being borne in mind, that this acknowledgment must not only go to the original justice of the claim, but admit that it is still due. See also in this connection, Clementson v. Williams, 8 Cranch, 72 ; and Whitney v. Bigelow, 4 Pick. 110, where it is said, that no set form of words is requisite ; it may be inferred from facts, without words. Also see 2 Greenleaf’s Evidence, §§ 440, 441. In Story on Contracts, § 706, it is said, as before shown, that the operation of the statute may also be frustrated by an acknowledgment of the existence of the debt, or by a new promise to’ pay it. And in section 707, he says, if there be no express promise to pay, a promise may be raised by implication of law, from the acknowledgment of the party. But such an acknowledgment, he adds, must contain an unqualified admission of the debt, and a willingness to pay it. An acknowledgment of the original justice of the claim, is not sufficient, unless accompanied with an admission of the party’s present liability. And see on this subject 2 Parsons on Contracts, 347.

We have been thus full in referring to the authorities at this time, because they will serve to aid us, when we come to consider the second error assigned, as well as show, by a series of decisions, the law as applied to the question now before us — and from these decisions, we deduce the following, among other propositions:

That the statute of limitations should not be viewed in an unfavorable light, or as a defence unjust and discreditable; but like all other statutes, should beso construed as to effect the intention of the legislature, that intention being to afford security against stale demands, after the true state of the transaction may from a variety of causes, be either forgotten, or rendered incapable of explanation.

That a party may waive the bar created by the statute, and revive the cause of action, by a promise to pay.

That if this promise is conditional in its character, the plaintiff must show that the condition has happened, else the defendant is not liable.

That the cause of action may be revived, not only by a promise to pay, but also by an acknowledgment of the debt.

That if this acknowledgment only goes to the original justice of the debt, it is not sufficient; but it must also admit its present existence, or that it is due_

That the terms of the acknowledgment or promise, are not material, if they clearly and unqualifiedly show a subsisting debt, for which the defendant is liable.

That when there is an acknowledgment of a present indebtedness, the law implies a promise to pay.

That such acknowledgment, though ever so clear, will not be sufficient, if accompanied with an express intention not to pay, or of an intention to insist on the benefit of the statute. But if not accompanied with any such intention, an acknowledgment is sufficient.

Let us now apply these propositions, as far as relevant, to the present question. The section of the Code, before cited, provides that causes of actions founded on contract, are revived by an admission that the debt is unpaid, as well as by a new promise to pay the same. This section must be construed with reference to the law, as it stood prior to that time. We do not understand that the admission that the debt is unpaid, would be sufficient, if accompanied with a denial of the -original justice of the demand, or -any other language that indicated that there was a valdd defence to it— theadmission.dhould not negative the fact that the debt justly -subsists. Nor do we ’suppose, that it would be necessary ¡that the debtor ¡should say in so 'many words, that the debt '•was unpaid. But if, when his language is fairly construed, ■such an admission can be satisfaetorily and clearly shown,it will be sufficient. And what is this admission, but -an acknowledgment of the debt? The debt, we must bear in mind, is not -extinguished by the bar of the statute. It still exists. The promise, or acknowledgment, or admission, does not create the debt, but revives it and continues it, so to speak, in law; and when the defendant, under the -Code, admits that the debt is unpaid, he makes in effect neither more nor less than an acknowledgment from which the law implies a promise to pay, supported by the original consideration. In short, this was one of the methods in which a •debt might have been acknowledged, so as to revive it before the Code took effect, and yet not the only method. The defendant might say, “I acknowledge your claim; your debt was and is just, and ought to be paid; I.acknowledge ■that payment has been delayed too long, and I must pay it;” or use like language. And yet all such expressions are but acknowledgments or-admissions of a continuing or existing liability to pay; but would not amount to what is termed .an express promise to pay. And finally, how can the debt- or acknowledge the debt, without admitting it to be unpaid; and how can he admit it to be unpaid, without acknowledging it ? Does not the term acknowledgment in this connection, necessarily include the admission provided for in the -Code,' as one of the methods of acknowledging the debt; and does not such an admission amount to an acknowledgment, and can it be fairly said to be any more or less •?

With this view of the law as it stood before the adoption of the Code, we have no hesitation in .saying, that the instructions based upon the -supposed change, were properly refused. And we therefore need not discuss the other positions which have been suggested; and these are: First. Whether, if this section of the Code did change the previous law, it does not apply alone to the remedy, and in no manner to the contract, and might not therefore have a retrospective operation, and affect and control admissions previously made? And Second. Whether the instructions were not properly refused, for the reason that the defendant’s admissions, as proved since the taking effect of the Code, were sufficient to sustain the verdict, and that, therefore, the previous admissions were entirely immaterial ? We need intimate no opinion as to the first question. The consideration of the second, will be necessarily to some extent involved in determining the last question in the case, to which we now come; and that is, whether the verdict and judgment were justified from the evidence ?

And we acknowledge that the question is not free from difficulty. There is no pretence for claiming, that the debt was revived by an express promise to pay. If revived, it is upon the grounds that he has acknowledged the debt, or admitted it to be unpaid. Counsel for appellant, urge that this acknowledgment is not sufficient, for several reasons; and we perhaps, cannot better present the view entertained by us on this part of the case, than by briefly examining these reasons. It is first claimed, that the evidence shows an unwillingness on the part of the defendant to pay the debt; or at least, does not prove an express willingness do pay. Without referring to the letters in detail, we think they do prove a willingness to pay. It is true, that defendant does refer to, or speak of, an inability to pay, and indeed his poverty would appear to be that which he most strongly urges upon the plaintiff, to induce him to not urge payment. But an expression of inability, can hardly be said to amount to an expression of unwillingness, in the sense that this latter term is used in the books. Unwillingness is disinclination, reluctance to do a particular thing; and yet there may be an inclination, desire, or readiness to do that which a party is unable to do. And so on the other hand, there may be the ability, without the inclination, or indeed coupled with a positive disinclination. An unwillingness to pay, results or rather arises, from mere objection to the debt, founded either upon circumstances transpiring at the time of the contract, or subsequent; and necessarily imports something different from an inability to pay. The expression of unwillingness, is held to defeat the promise or acknowledgment, upon the ground that it negatives the just existence of the debt. The recognition, as we have seen, must be clear and unqualified, and it is said this cannot be, if an unwillingness to pay is manifested. But on the other hand, the expression of an inability, in no manner takes from the acknowledgment, if it is otherwise sufficiently full and unqualified. If it appeared that the condition upon which he promised was an ability to pay, the question would be different. But as presented, we conclude that the expression of an inability, cannot amount to an unwillingness. But further, we think, as already stated, that defendant does express a willingness to pay — among other the following expressions are used by him in his letters and conversation: “ I am disposed to pay my debts, if I bad the means; I formerly expected to pay what I owed, but I have not been so fortunate, &c.; I would not go to California, but for my eastern debts, and among others, I am indebted to plaintiff;” and again, in December, 1858, when acknowledging a deed, for a parcel of land, which he had sold, he said he expected plaintiff out, and was selling this land to pay him. All of these expressions clearly manifest a willingness to pay plaintiff, and it would be doing violence to language certainly, to hold that they showed an unwillingness. And to our minds the fair conclusion to be drawn from all this testimony is, that defendant was willing to pay, and acknowledged the-correctness of plaintiff’s claim, but urges his poverty and afflictions as reasons why he is unable.

Concluding, therefore, that there is not only the absence of an expressed unwillingness, but proof that he expressed himself willing to pay; and that in this respect the testimony was sufficient, we next consider the second objection urged. And that is, that there is not sufficient to show that the admission or acknowledgment had reference to this particular debt. ■

We are aware that on this subject the authorities are far from being uniform. The courts in Massachusetts, and other states, have held, that a general acknowledgment of being indebted to the plaintiff, is sufficient prima facie to take the demand sued on out of the statute; and that the onus lies on the_ defendant, to show that his acknowledgment had reference to a different demand. Whitney v. Bigelow, 4 Pick. 410 ; Bailey v. Grane, 21 Ib. 323 ; Woodbridge v. Allen, 12 Met. 470; Gray v. Jarvis, 6 Gill, 82. In other states, it has been held, that the acknowledgment must be so precise and definite in its terms, as to show that the debt sued on, was the subject matter of it; and that the acknowledgment of a mere general indebtedness, is not sufficient. Moore v. Hyman, 13 Ired. 272 ; Harbold v. Kuntz, 16 Penn. 210; Clarke v. Dutcher, 9 Cow. 674.

In this case, it does not appear that any instructions were asked or given on this particular question. It would appear to have been left to the jury to determine, whether the defendant intended to acknowledge this particular debt. And to this course, we can see no good objection. It does not seem to be entirely settled by the authorities, whether the sufficiency of the acknowledgment in all respects, to remove the bar of the statute, is to be determined by the court or jury. When the question is one of intention, however, to be gathered from the words used, and from all the circumstances of the case, we believe it .to be proper to leave it to the jury, under the instructions of the court. 2 Parsons on Contracts, 348; Angelí on Limitations, § 238. Here no proof was made that any other debt existed, that might have been referred to in the letters and conversations. Under such circumstances, what objection can there be to leaving it to the jury to determine, whether defendant had reference to this debt ? Was it not as legitimate a subject for their consideration and determination as any other question of fact ? Did the defendant refer to this note in his letters and conversation ? was the question, and this question, we think, whs properly submitted to tbe jury. In suob cases, it is tbe duty of the court to instruct tbe jury as to tbe principles of law applicable, and by wbicb tbey must be governed in tbeir determination. For instance, tbey might be advised, tbat if tbe acknowledgment was general, and it appeared tbat two or more debts existed, tbe onus was thrown upon tbe plaintiff to clearly and fully satisfy them, tbat tbe debt sued on, was tbe one intended. If, on tbe other band, tbe proof satisfied them tbat tbe debt sued on, was tbe only one between tbe parties, then such acknowledgment would be sufficient, without referring to tbe debt, by date, amount or description. And again, tbat if there was an absence of proof as to any other debt, tbey were to judge from all tbe circumstances, whether tbe acknowledgment bad reference to tbe claim wbicb was tbe subject of tbe suit, it being- borne in mind, tbat tbe jury must in all cases, be satisfied tbat tbe defendant at tbe time be made the acknowledgment, intended to refer to tbe claim sued, and not another. And, finally, tbat in all such cases, the burthen of proof is on tbe plaintiff, to show tbat tbe acknowledgment bad reference to tbe claim wbicb be sets up, and unless be does clearly so satisfy them, tbeir verdict should be for defendant.

Believing tbat this question was properly left to tbe determination of tbe jury, tbe remaining inquiry is, whether tbey were justified in finding as tbey did from tbe testimony. And we certainly cannot conclude tbat this verdict was so far against tbe weight of evidence, as to authorize a new trial. To sustain tbe verdict, we have, first, tbe fact that no proof is. made of tbe existence of any other debt. In tbe next place, in bis-letter of February, 1850, be distinctly refers to tbe debt wbicb be was owing, as “ tbe note,” and when we consider further,-tbat in all tbe correspondence and .defendant’s conversations, be makes no reference to plaintiff’s having more than one demand, but at different times speaks of making efforts to pay plaintiff, we think tbe jury might reasonably have concluded tbat defendant did refer, and intended to refer, to this particular debt.

But it is claimed, tbat the acknowledgment was indefinite as to tbe amount owing. If, however,- tbe note- sued on, was tbe one referred to, it becomes prima facie evidence of tbe amount of tbe debt. Where tbe promise or acknowledgment relates to a particular debt, tbe evidence of which is in writing, as a promissory note, and is sufficient to revive it, tbe original note, with interest, is prima facie tbe amount due. In short,, when thus revived, (tbe acknowledgment or promise not fixing a definite-amount,) tbe note becomes the; evidence of tbe amount, subject to. any offsets, payments, or tbe like, just as if suit bad- been brought on it before it was barred. We conclude, therefore, that tbe court did not err in refusing tbe instructions asked-; that tbe verdict was warranted from the evidence; and: that the motion for a. new trial, was properly overruled.

Judgment affirmed.