Walker v. Griggs

32 Ga. 119 | Ga. | 1861

By the Court.

Lyon, J.,

delivering the opinion.

This was a motion for a new trial, on the ground that the verdict of the jury is strongly and decidedly against the weight of the evidence, which was refused by the Court below, and brought before us for review by writ of error.

The debt, upon its face, is barred by the statute of limitations, as to the defendant, and the plaintiff sought, on the trial, to take the case out of the operation of that statute, which was relied on by defendant as a defence thereto, by the subsequent promise or acknowledgment of the debt, as contained in a letter written by defendant to J. Adams, on 10th February, 1857, in reply to one written to him by Mr. Adams on the 6th of that month.

According to the rule laid down by this Court, in Martin vs. Broach, 6 Ga., 31, an acknowledgment or promise sufficient to obviate the statute of limitations, or impose a new obligation, must specify, or plainly refer to, the particular demand or cause of action to be renewed or created by it.

2. Tried by this rule, is this demand, now sued upon, specified, or plainly referred to, in the acknowledgment or promise contained in the defendant’s letter of 10th February, 1856? We think not. Mr. Adams, in his letter, refers generally, to the notes held by Mr. Walker on the late Judge Merriwether, and defendant as security. He makes no mention whatever of the number of the notes so held, the amount due on the notes, or when they were given and made payable. • The defendant, in his reply, makes the same sort of general reference. In neither one is this particular debt specified, or plainly referred to.

3. The plaintiff, in order to identify the note sued on as the one referred to by the defendant’s letter, introduced in evidence an exemplification of a proceeding in equity in Putnam Superior Court, by Jefferson Adams, as the administrator of Judge Merriwether’s estate against the creditors of that estate, for the purpose of marshaling and distributing among those entitled to the same, the assets of that estate, in which this particular debt was specified as one held by Walker; one other note by Merriwether, and defendant as security, was enumerated therein, as belonging to, and held by, Walker; also, an execution against defendant and Merriwether, but which was, in fact, the individual debt of Merriwether. The execution was fully paid off out of the assets, and the notes received a pro rata share out of the assets of thirty cents on the dollar, which was credited on them. This evidence is very conclusive that the notes referred to by Mr. Adams, in his letter, was the note for $500, and the demand sued on as the notes held by him for Mr. Walker on Merriwether and defendant; and it also raises a very strong presumption that defendant, who was a party to the proceeding in equity in Putnam, so understood the reference, and promised accordingly, but the presumption is not so strong as to be conclusive. The defendant might not have understood the note sued on to be one of the notes referred to, though it is probable that he did, and intended that his promise should apply to it. But it was a question of fact for the consideration of the jury, and they having found that the promise did not apply to this demand, and the Judge who tried the case having refused to disturb their verdict, ive do not feel at liberty, under the circumstances, to control that discretion. This is a very old debt, made in 1840, due in 1841, has been actually barred, as against this defendant, since 1848, and he is but the security. A promise, or acknowledgment to revive the debt as to him, ought to be so clear and explicit as to the particular debt, that there could be no doubt as to his intention to renew his obligation to pay the debt.

Judgment affirmed.