104 Tenn. 547 | Tenn. | 1900
This is a suit upon a note for $130, executed by Geo. W. Scott and H. C. Scott, at Evansville, Ind., September 16, 1868, and payable to the order of Jones & Gatch.
The plaintiff, H. C. Scott, and G. W. Scott, deceased, were brothers, and at the date of said note, to wit, September 16, 1868, G. W. Scott
The defendant pleaded, first, the statute of limitations of six years; second, payment. The plaintiff filed a replication relying on a new promise made within six years before suit brought.
The proof on the subject of the new promise was, first, the testimony of Clarence Scott, a nephew, who testified that in October, 1887, G. W. Scott in his presence promised to repay IT. 1C. Scott when he got able. Next plaintiff introduced the following letter, purporting to have been written by G. W. Scott, viz.:
“Millington, TeNNessee, April 25, 1894. “Dear Brother Henry C. Bcott:
“I am keeping store at this place and doing
It is claimed by plaintiff that the letter of April 25, 1894, shows, first, a new promise to pay the note; second, ability to pay at the. date of the letter; and, third, inability to pay' before that date.
It is further insisted on behalf of plaintiff that his right of action only accrued from the date of the letter, and that the time for bringing suit was thereby extended six years. Defendant’s counsel objected to the admissibility of this letter in evidence upon the ground that it had not been sufficiently proved to be the. genuine letter and signature of the deceased, but the Court overruled the objection and permitted the letter to be read to the jury, to which action of the Court defendant’s counsel excepted. It should be remarked in this connection that this cause was before this Court at last term on appeal by defendant from a judgment in favor of plaintiff below for the amount of the note. The judgment was reversed upon the ground that there was no proof that
“I was well acquainted with G. W. Scott, deceased. I have often seen this letter before. I don’t ■ remember much about G. W. Scott’s handwriting.' This letter is, as far as I remember, G. W. Scott’s writing. As far as I recollect, it is his signature. This letter came through the United States mail. hi. II. Overly, who was postmaster at Henderson, Kentucky (our home at that time), delivered it to my father, H. C. Scott.”
This evidence was substantially the same as that delivered by this witness on the former' trial. JT. 0. Scott, being a party in interest on the record, was disqualified to testify about this transaction in a suit against his deceased brother.
On the remand of the case the plaintiff took the deposition of Mrs. Amanda Scott, wife of IT. C. Scott, for the purpose of identifying the handwriting of G. W. Scott. This witness testified that she was well acquainted with the handwriting of G. W. Scott, that he boarded at her
The jury, under the charge of the Court, returned a verdict in favor of defendant. A new trial having been refused, plaintiff appealed, and has assigned errors.
The first assignment is that the Court erred in the following instruction to the jury, to wit:
‘‘It is further insisted by plaintiff that G. W. Scott promised, in October, 1887, to pay said note when he got able. If the jury believe from the evidence such promise -was made, then the time for suing on said note would be extended only for six years thereafter, and unless suit was brought within six years next after said promise was made, the right of action at the expiration of that six years became barred, and no recovery can be had.”
We think this an erroneous statement of the law. The new promise was conditional upon the ability of the promisor to pay, and until that ability was shown, no action could be maintained. But whenever the promisor became able to pay,
For idle error in the charge, the judgment is reversed and the cause remanded.