Philp v. Hicks

73 So. 610 | Miss. | 1916

Cook, P. J.,

delivered the opinion of the court.

This case was affirmed on a former day of this term without opinion, and is again brought to our attention on suggestion of error.

■Suit was begun in the court of a justice of the peace on the. following promissory note:

“Chatham, Ont., Sept. 17th, 1904. Due Jan. 4. $75.00. On 1st. Jan., 1905, after date I promise to pay to the order of A. A. Hicks at the Merchants’ Bank of Canada here the sum of seventy-five dollars. Value received. E. M. Philp.”

The justice of the peace rendered a judgment against the plaintiff, and an appeal was taken to the circuit court, where the finding was for the plaintiff and defendant appealed to this court. In the circuit court the record 'discloses that the case was tried by the judge without a jury. In addition to. the note and indorse-ments thereon, the following letter, signed by defendant, was introduced in evidence:

“Jackson, Miss., Dec. 6, 1912. Dr. A. A. Hicks, Chat-ham, Ont. — Dear Sir: I received a call from atty. J. H. Thompson of this city, re a one hundred and twenty seven dollor debt which you hold against me. This acct. is a bit late in being presented, as I have been under the impression same had been paid long ago, but as I noted that the note for seventy-five has not been stamped with any cancellation stamp, same certainly must still be unpaid.'

“As I do- not want you to lose any of this amount, what will you take for a settlement in a lump sum; .

“I will look for a reply from you within a few days and I trust that this matter will he closed up within a short -while.” - ’

It will he noted that the note was due on January 1, 1905, and that this suit was begun on the 10th day of August, 1914, in the justice court.

It seems that plaintiff contended that the statutes of the province of Ontario, Canade, would control in determining whether or not the claim was barred by the statute of limitations, while the defendant claimed that the statutes of the forum are controlling.

We agree with the defendant that the statutes of this state furnish the rule, hut we believe that this record shows that the claim was barred by the statutes of both jurisdictions, and that the action was barred here unless the letter written by the defendant removed' the bar.

Onr first impression was that the letter acknowledged the indebtedness; but, when the suggestion of error was filed, a more careful examination of the law books and a more thorough analysis of the letter caused us to seriously doubt the correctness of our former judgment, and we therefore asked counsel for appellees to file further briefs' in response to the suggestion of error, but they declined to do so, believing as they did that they had exhausted the subject in their original brief, which is probably true. So, the' question 'is: Was the letter written “to serve as an acknowledgment, or promise of a debt in order to prevent the bar of the statute?” Allen v. Hillman, 69 Miss. 225, 13 So. 871. Is the letter- sufficiently precise and definite as to' the debt and amount to have the effect under the established rule ?

In the early days, our high court of errors- and appeals definitely defined the purpose and policy of our statutes of limitation. It was held then that they were “acts of quiet and repose,” ahd the court pointed out the fact that these acts were designed, to discourage lawsuits, and said, “The law is created for the watchful and not for- the negligent.” Davidson v. Morris, 5 Smedes & M. 571.

In this case the court announced the rule to be “in order to take a case out of the statute of limitations, an express acknowledgment of the debt, as a debt due at that time or an express promise to pay it.” Tested by this time-honored rule, was it intended by the writer of the letter to expressly acknowledge the debt as due at the-time1?

An admission contained in a writing, the purpose of which is to procure a compromise of a barred demand, does not operate as an acknowledgment of the debt so as to remove the bar of the statute. Pool’s Ex’r v. Relfe, 23 Ala. 701.

It is reasonably clear that Mr. Philp wrote the letter for the purpose of compromise. It is true that he said that the note must not have been paid. However, this is not all of the letter. The writer stated that he was under the impression that the note was paid long since, but since the note was not stamped paid he deduced that he may have been wrong in his impressions. It seems, therefore, if we assume that the writer was frank, he believed that the note had been paid, but, as it appeared that the note had not been stamped paid he could not claim that he had. paid it. In other words, the evidence seemed to .be against the correctness of his recollection. The courts of the several states have adopted different rules of construction for their statutes of limitation, but our court - has uniformly held that, in order to remove the bar of the statute, the acknowledgment of the debt and the promise to pay must be definite and unequivocal.

We now believe that the letter relied on in this case does not come up to the mark, and must he taken as a frank letter from one friend to another expressing surprise that the note had not been paid, but admitting that the circumstances were against his recollection, and for this reason he inquired of his friend what it would take to settle the matter. Stated in another way, he admitted that the evidence warranted a compromise. There was no express and definite acknowledgment of the debt, and it is not claimed that there was an express promise to pay.

If we have correctly interpreted the writing, it seems to logically follow that the confessedly barred claim has not been acknowledged, and' the learned circuit court was in error; and, also, that this court was in error when it affirmed the judgment of the trial court.

The suggestion of error is sustained, the judgment below is reversed, and the cause is dismissed.

Reversed and dismissed.