Wenz v. Wenz, 222 Mass. 314

Wenz v. Wenz

222 Mass. 314 | Mass. | 1916

De Courcy, J.

The verdict in this case is for money lent by the plaintiff to his brother, the defendant, in 1897 and 1898. The exceptions relate to the issues raised by the answers of payment and the statute of limitations.

1. The offer of evidence to show the value of the estate of their father properly was excluded. Even if we disregard the purpose and legal effect of the agreement by which the defendant waived his claim of inheritance, and of the declaration signed by his brothers and sisters acknowledging his equal inheritance rights notwithstanding the waiver, the offer did not purport to show that the plaintiff ever received from the estate any money to which the defendant was entitled except the legacy of three hundred gulden; and this he directed the plaintiff to keep on account of the loan. If the defendant had a further and unliquidated claim against the plaintiff, growing out of the joint executory contract, it could not be litigated in this action, under a plea of payment. See Borden v. Sackett, 113 Mass. 214.

The letter of the plaintiff dated March 30 was rightly excluded for the same reason, and for the further reason that it added nothing to the declaration already in evidence.

*3212. It is a settled principle that in order to avoid the statute of limitations there must be either a new express promise to pay, or one which the law implies from an acknowledgment of the debt as a present indebtedness; and the promise, whether express or implied, must be unconditional, or there must be evidence that the .condition has been performed. Custy v. Donlan, 159 Mass. 245. Gillingham v. Brown, 178 Mass. 417. The requests for rulings call for the application of this principle to three documents signed by the defendant. R. L. c. 202, § 12. The first, which was the letter dated January 14,1907, after reciting that the defendant earlier had written “that you should keep this money and that the time will come when I will pay you the money,” added “which it is my intention to do.” This was an unqualified acknowledgment of present indebtedness, sufficient to avoid the statute, even assuming that the sentence "As soon as I do not have to give all my money at home, I will save some for myself and send it to you,” should be construed as a conditional promise. The second paper, dated November 13, 1911, after authorizing the plaintiff to apply upon the debt certain moneys of the defendant, added: “The amount as claimed by Franz Wenz is 3600/46 gulden. In case there is any think [sic] left it should be served [sic] to me or if any think [sic] is short by law I will make good.” This was an absolute promise to pay the debt. Nathan v. Leland, 193 Mass. 576. The third document, dated November 16, 1911, after setting out the account in detail, expressly declared, "I acknowledge the complete correctness of this statement and debt,” and unconditionally promised to “make settlement” of any “shortage” left after the plaintiff should apply on account a certain inheritance then due to the defendant. We find no error in the judge’s refusal to give the three rulings requested:

3. The plaintiff testified that on November 16, 1911, the year after he had come to Boston, he received from the defendant a payment on account of the debt amounting to $122.40. From the testimony, and the statement of November 16, 1911, signed by the defendant, it appears to have been an unconditional payment on account of this debt. As such it was sufficient to take the debt out of the statute of limitations, irrespective of the acknowledgments in writing already referred to. Gillingham v. Brown, ubi supra. If the letter of January 14, 1907, referred to the same *322money, that letter was an earlier authorization to apply it on account of the defendant’s debt when the plaintiff later should receive the inheritance money. The portion of the judge’s charge which dealt with the application of this money by direction of the defendant was correct.

It follows that all the exceptions taken by the defendant must be overruled.

So ordered.