Weston v. Hodgkins

Colburn, J. It was decided in Bangs v. Hall, 2 Pick. 368, upon an elaborate review of all the authorities, that, to take a debt out of the statute of limitations by reason of an acknowledgment or new promise, it is necessary that there should be an unqualified acknowledgment, not only that the debt was just originally, but that it continues due at the time of the acknowledgment, so that a promise to pay can fairly be implied; either an express promise to pay the debt, or a conditional promise, the condition of which has been performed. This decision has been repeatedly approved and affirmed in subsequent cases. Gardner v. Tudor, 8 Pick. 206. Sigourney v. Drury, 14 Pick. 387. Bailey v. Crane, 21 Pick. 323. Roscoe v. Hale, 7 Gray, 274. A promise to renew notes on certain terms, which are not acceded to, does not take the notes out of the statute. Mumford v. Freeman, 8 Met. 432. An offer of compromise, and to pay part for the whole, is not an admission of the debt, so as to take it out of the statute. Smith v. Eastman, 3 Cush. 355. Applying these principles to the case at bar, we are of opinion that neither of the letters relied upon is sufficient to take the notes out of the statute of limitations. They contain no [328] unqualified acknowledgment that the debts continued due, or an express promise to pay the debts. At most, they only contain offers to compromise, if satisfactory terms can be agreed upon. The letter in Mumford v. Freeman, ubi supra, which was held not to be sufficient, makes a stronger case for taking the debt out of the statute than do the letters in the present suit. The suggestion of the plaintiff, at the argument, that the letter of February 7, 1876, contains an acknowledgment of a payment on the notes, cannot avail him. If the language used is regarded as an acknowledgment of a payment or payments on the notes, it does not appear whether upon one or the whole; and there is nothing from which it can be inferred that any payment was made within six years of the date of the writ. At the date of that letter, the first note had been overdue nearly five years, and the last one nearly two years, and the letter was written over five years before the date of the writ, and only refers to payments at some indefinite past time. Exceptions sustained.