131 P.2d 85 | Okla. | 1942
Plaintiff, L.L. Stone, sued to recover on promissory notes executed by defendants, W.T. Smoot and Edna L. Smoot, husband and wife, and to foreclose a mortgage given to secure the notes on land belonging to defendants. Defendants demurred on the ground that the petition showed on its face that the action was barred by the statute of limitations. The trial court sustained the demurrer, plaintiff elected to stand on the amended petition, and the trial court dismissed the action. Plaintiff appeals.
The amended petition recites that the rotes and mortgage were executed by defendants on August 21, 1928, and that the indebtedness secured thereby was a part of the purchase price of the land described in the mortgage, which had been sold and conveyed by plaintiff to defendant W.T. Smoot. It set forth a letter dated August 5, 1935, which it alleges was written and signed by the defendant W.T. Smoot, acting for himself and as agent for Edna L. Smoot, to Solon W. Smith, who is alleged to be the agent and attorney of plaintiff. The letter follows:
"In regard to signing the extension agreement on the Stone land, I have decided that I will just pay off the loan as soon as Mr. Stone gets the title straightened and gives me the credit for the taxes as was my understanding.
"In case that Mr. Stone does not defend the title I will be compelled to do so myself and charge it to him.
"I would like to know at once which way he will want to handle this matter."
1. The first question presented is whether the above letter is a sufficient "acknowledgment of an existing liability, debt, or claim," under 12 O. S. 1941 § 101, to toll the operation of the statute of limitations. The action was filed April 19, 1940, within five years from the date of the letter.
The plaintiff cites and relies upon Markovitch v. McGowan,
The rule to be applied in testing the sufficiency of written acknowledgments of debt to toll the statute of limitations is that "all that is necessary to satisfy the statute is for the debtor to manifest in writing an acknowledgment of the existing liability, debt, or claim, and no particular form is necessary." Baker v. Christy, above. This is also the general rule. See 37 C. J. 1107; 17 R. C. L. *514 889; 34 Am. Jur. 240; Wood on Limitations (4th Ed.) §§ 64, 95c (2). Neither the amount of the debt nor its exact nature need be definitely stated. Wood on Limitations, vol. 1, p. 372.
When the decisions of this court above cited, and the cases referred to in Baker v. Christy, above, are examined, it will be seen that the letters upon which they are based definitely do or do not come within the rule announced above. While in most of those cases the letters were written before the debts were barred by the statute, the rule applies also where the debt is already barred. American Surety Co. v. Steele, above. Such was the construction given the statute in Kansas prior to its adoption in Oklahoma. Elder v. Dyer,
Defendants contend that the statement in the letter that the writer will pay the loan "as soon as Mr. Stone gets the title straightened and gives me the credit for taxes as was my understanding" makes the acknowledgment conditional, citing McKennon v. McKennon,
2. Defendant also calls attention to the fact that the letter was not signed by Edna L. Smoot. But the petition avers that W.T. Smoot acted as her agent in writing the letter, and on demurrer to the petition the averment will be taken as true. Crews v. Garber,
Reversed, with directions to overrule the demurrer and to proceed in accordance with the views herein expressed.
WELCH, C. J., CORN, V. C. J., and GIBSON, DAVISON, and ARNOLD, JJ., concur. RILEY, OSBORN, and BAYLESS, JJ., absent. *515