Sibert v. Wilder, 16 Kan. 176

Sibert v. Wilder

16 Kan. 176 | Kan. | 1876

The opinion of the court was delivered by

Brewer, J.:

This action was brought. to recover the amount of a promissory note given by the defendants August 29th 1867, and payable one day after date. The petition was filed December 17th 1873, and consequently the demand is barred by the statute unless the cause of action is saved by subsequent acknowledgment. The acknowledgment relied upon to take the case out of the statute is the affidavit of J. H. Wilder, one of the copartners, taken before the clerk of the court, October 30th 1873, one month and-a-half before suit brought. The language of said affidavit is, “There was due and owing on said note on the 25th day of March 1868, when notice of garnishment in this and other cases was served, the amount of said note as above stated, less the $250. Said note is still outstanding and unpaid at this date, except that I claim an offset on a certificate of deposit issued to said W. H. R. Lykins by one A. E. Baird, dated September 17th 1867, for $300, and on a counter-check by said Lykins to one B. W. Fitts, and transferred to me, accompanied by a written order upon Lykins for that amount dated October 9th 1867. The firm of Wilder & Palm, was and is composed of myself and Andrew Palm.” This affidavit was signed by John H. Wilder. The defendant demurred to the petition, and the court below sustained the demurrer.

Three objections are made to this acknowledgment — that it was not voluntary, but enforced; that it is not the admission of a present and subsisting debt, which the party is liable for and willing to pay, and that it was not made to the creditor, or any one acting for him, but to an entire stranger. As the record appears before us we think the last point well *181taken; and without considering the others, upon that decide the case. All that can be gathered from the record is, that this acknowledgment was made in an answer returned by-Wilder as garnishee in an action brought against the assignor of the plaintiff. It was not therefore made to this plaintiff, or his assignor, or to any one acting for him, but to a party claiming adversely to such assignor. Is such an acknowledgment within the statute? We think not. It may be conceded that at one time the decisions of the courts were in favor of such a construction: Peters v. Brown, 4 Esp. N. P. R. 46; Clark v. Hougham, 2 Barn. & Cress. 153; Montstephen v. Brooky, 3 Barn. & Ald. 141; Halliday v. Ward, 3 Camp. 32; St. John v. Barrow, 4 Porter, (Ala.) 223; Whitney v. Bigelow, 4 Pick. 110. But these rulings grew out of the fact that the statute of limitations was regarded as a statute of presumptions rather than as one of repose. It is well said in 3 Pars, on Contr., 5th ed., p. 63, “A very little observation will show that these two views lead to results which are not only distinctly different, but antagonistic. This difference may be stated theoretically thus: If the statute of limitations be a statute of presumptions, then it is taken away by whatever will rebut the presumption, and this is anything which implies or amounts to an acknowledgment that the debt still exists; but if it be a statute of repose, then it remains in force unless the debtor renounces its benefit or protection, and voluntarily makes a new promise to pay the old debt.” It is perhaps needless to add that the latter is to-day the accepted view. Under that view it"is held,that an acknowledgment to a meré stranger will not avoid the running of the statute. The acknowledgment of a debt, to take a case out of the statute of limitations, must be made, not to a mere stranger, but to the creditor, or some one acting for him, and upon which the creditor is to act or confide. 2 Story’s Eq., § 1521a. See also, as further authorities, Bloodgood v. Brewer, 4 Selden, 362; Wakeman v. Sherman, 5 Selden, 85; 5 Nev. 206; Taylor v. Hendrie, 8 Nev. 243; 3 Parsons’ Contr., 5th ed., p. 85; Collins v. Bane, 34 Iowa, *182389; F. & M. Bank v. Wilson, 10 Watts, 261; Christy v. Flemmington, 10 Penn. St. 129; Kyle v. Wells, 17 Penn. St. 286; Johns v. Sands, 63 Penn. St. 324; Rings v. Brooks, 26 Ark. 540; Roscoe v. Hale, 7 Gray, 275; Keener v. Crull, 19 Ill. 190; Farrell v. Palmer, 36 Cal. 187; Georgia Ins. Co. v. Elliott, Taney, 130.

The judgment will be affirmed.

All the Justices concurring.