52 Wis. 272 | Wis. | 1881
The only question in this case is, whether the. letter written by the defendant to the plaintiff, bearing date September 23, 1874, contains a sufficient promise to pay the note to take the case out of the statute of limitations. The letter of July 13,1865, can have no -bearing upon this question, as more than six years had elapsed from the time of writing such letter and the commencement of the action, and more than six years had elapsed from the time of writing that letter to the time of writing the letter dated September 23, 1874. The following is a copy of the last letter:
.“La Orosse, Wis., September 23, 1874.
“ Charles 8. Pierce, Psq., St. Johns, P. Q.— My Old FrieNd: I owe you some letters and some money. That’s plain and clear, is it not? If I have not written you very freely, it is because I have occasionally witnessed admonitions in confirmation of the advice given by President Yan Burén to his gushing son ‘Prince John.’ Letters are sometimes ugly things, and therefore I have been shy about writing. I do think I see my way clear to pay you the $200 and interest I owe you; but since I have been in the West, notwithstanding I have been busy and pushing like a beaver, I have never seen a day or an hour that I have been out of the reach of a creditor’s goad. In fact, I have been driven right up sharply on the bit all the time, gaining some, but always carrying heavy incumbrances.
“You are mistaken about my present resources. Many legal restrictions are thrown around what may ultimately be a substantial benefit. An aged aunt seventy-seven years of age, with a secured life support, and the extinguishment of a married sister’s elainpon the estate, requiring a lapse of time and payment of her portion, prevent me from realizing what you suppose has fallen at my disposal. Still, I am in hopes another two years will enable me, from my present official income, .to clear off all pressing debts that have held me as in a blacksmith’s vise. I am thus free in stating facts to you in all*276 honor to free myself from the imputation of being reluctant to pay while having the apparent ability. Nest assured that not a day of pecuniary freedom will pass over my head without you hearing from me. Give my kind regards to your family or families. Often, often, often, my thoughts revert to the many social hours in. friendly intercourse and generous hospitalities of both families, father’s and son’s. Nor one who will on November 15th be 53 years old, I am a ‘lively delegate.’ I have lost the run of your years. Am I out of the way in putting you about eight or nine years ahead of me?
“ Nespectfully, sincerely and truly yours,
“Ohaeles Seymour.”
This court has attempted to settle two things in regard to the construction of the statute of limitations: (1) That when the statute of limitations has run against a debt in favor of the party owing the same, the debt is extinguished; (2) that no mere admission of a legal liability is sufficient to remove the bar of the statute,— to effect that there must not only be an acknowledgment of the debt or obligation, but an unqualified promise to pay the same, and such promise must be in writing, signed by the party making it.
The first proposition, as applicable to contracts for the payment of money, was definitely settled by this court in the case of Brown v. Parker, 28 Wis., 21. It had been before settled as to actions involving the title to real estate and personal property in the cases of Sprecher v. Wakeley, 11 Wis., 432; Knox v. Cleveland, 13 Wis., 247; Howell v. Howell, 15 Wis., 55; Pleasants v. Rohrer, 17 Wis., 577; Lindsay v. Fay, 28 Wis., 177. In the case of Brown v. Parker, supra, Chief Justice Dixon, in delivering the opinion’ of the court, speaking of the decisions of this court in the other cases cited, says: “ It is true those were not actions upon contracts for the payment of money, or the performance of any other thing; but the principle must be the same in all classes of actions. It seems impossible to make a distinction, upon any sound reason
These cases settled the question for this state as to the effect which the statute of limitations has upon the right of the holder of a debt or demand against another, against which it has run. Not only the right to maintain an action for the recovery of such debt, is taken away, but the debt itself is extinguished. This being the case, the second proposition logically follows: that no mere acknowledgment of such debt can be sufficient to give new life to it, or be the foundation for an action to recover the same; and, although the second proposition was announced by this court in Pritchard v. Howell, 1 Wis., 131, and before the first was authoritatively determined by this court, it does not the less depend upon and flow out of the first. This court, in Pritchard v. Howell, after full consideration of the authorities holding the contrary doctrine, determined that, in order to take a case out of the statute of limitations on the ground of a new promise, there must be an admission of the debt or obligation, and an unqualified promise to pay the debt or perform the contract, made within the time limited by the statute. That decision was made in 1853, and has been strictly adhered to by this court down to the present time. See Martin v. Fox & Wisconsin Improvement Co., 19 Wis., 553; Carpenter v. State, 41 Wis., 28. In Carpenter v. State, the present chief justice,
The decision in Pritchard v. Howell, supra, was made before section 37, ch. 138, R. S. 1858 (section 4243, R. S. 1878), was enacted. But this section was not enacted for the purpose of defining what should take a case out of the statute, nor to extend the established law to new cases, but, on the contrary, to restrict the exceptional cases which the courts had held were taken out of the statute, by requiring that the acknowledgment or promise which, as the law then stood, woifid take the case out of the statute, though an oral one, should not thereafter be sufficient unless it was made in writing, signed by the party. If any inference can be drawn from this statute that the legislature supposed, when it was enacted, that an acknowledgment of the debt alone would remove the bar of the statute, the answer is that the same inference might be drawn as to the opinion of the legislature upon the effect of such acknowledgment from the provisions of sections 3.6 and 37, ch. 127, R. S. 1849, which were in force when the decision in Pritchard v. Howell was decided; and the decisions made by this court since the enactment of the Revised Statutes of 1858, were made with full knowledge of the existence of the provisions of said section 37, ch. 138, R. S. 1858, and of the force of the same as bearing upon the legislative construction of the law upon that question. It is too late, therefore, to invoke the aid of this legislation as decisive that an acknowledgment of the debt will remove the bar of the statute. It must be held, as it has been by this court, that the law above re
This court having -repeatedly and deliberately decided that the bar of the statute cannot be removed when it has run, except by an acknowledgment of the debt and an unqualified promise to pay, it is wholly unnecessary to consider what other courts may haye.held on this subject. We are compelled to concur "fipon the question of fact with the learned circuit judge, that no such promise was proved on the trial. The letter relied on undoubtedly acknowledges this indebtedness of the defendant, but studiously avoids making any promise of payment. The defendant ventures the opinion that he sees his way clear to pay the money at some day in the coming future, when the legal restrictions and incumbrances which adhere to-the inheritance which has fallen to him from some deceased relative, shall be removed, and through his official income he shall get beyond the reach of the creditor’s goad, and the grasp of pressing debts which have held him as a vise for many years, and hopefully assures the plaintiff that when the day of pecuniary freedom shall come, he will hear from him promptly. This letter was undoubtedly intended to give the plaintiff hope that at some time he might expect, to realize something on his long-standing claim, but it seems to come far short of being such an unqualified promise to pay the note with interest as the law requires. At best, it was a promise subject to many contingencies and conditions, none of which were
By the Oov/rt. — -The judgment of the circuit court is affirmed.