Wald v. Arnold

Holmes, J. The theory on which an acknowledgment or new promise takes a debt out of the statute of limitations is that it waives the bar of the statute. Ilsley v. Jewett, 3 Met. 439, 445. See Bigelow v. Norris, 139 Mass. 12. Therefore were the matter a new one, perhaps the question might be raised whether an acknowledgment before the statute had run, when there was nothing to waive and the liability was undeniable, ought to have any effect. But probably the whole doctrine is a relic of the time when the statute was regarded with disfavor and evaded as far as possible; Langdell, Con. § 73; Bangs v. Hall, 2 Pick. 368, 372, 373; and the distinction suggested has not been observed. In Custy v. Donlan, 159 Mass. 245, the acknowledgment was signed before the statute had run on the last two items recovered. So the statute had not run at the date of the letter relied on in Krebs v. Olmstead, 137 Mass. 504. See also Penniman v. Rotch, 3 Met. 216, 218; Carlton v. Ludlow Woolen Mill, 27 Vt. 496; Patton v. Hassinger, 69 Penn. St. 311, 315; Mastin v. Branham, 86 Mo. 643, 651; Pollock, C. B., in Cornforth v. Smithard, 5 H. & N. 13, 14. We assume that no question is open upon this point. [136] But we are of opinion that the letter is not a waiver of the statute bar. When it is said in Custy v. Donlan, 159 Mass. 245, 246, that an unqualified acknowledgment of a debt as an existing debt is conclusive, the remark is perfectly true of such an acknowledgment as was before the court, which on its face imported an admission that at that time there was no defence. So as to the letters passed on in Barnard v. Bartholomew, 22 Pick. 291, Cornforth v. Smithard, 5 H. & N. 13, and Quincey v. Sharpe, 1 Ex. D. 72. But it is not meant that an admission of the undeniable facts that a debt has been incurred, and has not been satisfied, will waive the statute. The language used must go further than that. The letter before us stops at that point. It states a present inability to pay, holds out no hope for the future, impliedly admits no more than that the defendant did incur a certain debt in the past, and leaves the plaintiff to consider what lie will do next. It goes no further than the acknowledgment which was held insufficient in Krebs v. Olmstead. See also Weston v. Hodgkins, 136 Mass. 326. Judgment for the defendant.