Reymond v. Newcomb

CRUMPACKER, J. On the twelfth of April, 1899, the plaintiff in error, Numa Reymond, filed his complaint against the defendant in error, Simon B. Newcomb, in the third judicial district court for the county of Dona Ana. Afterwards, an amended complaint was filed in the cause, and this was afterwards still further amended by the filing of a second amended complaint. To this second amended complaint the defendant filed a demurrer, which was sustained by the court, and the plaintiff in error electing to stand upon his second amended complaint, the cause of action was thereupon by the judgment of the court dismissed. For a review of this ruling of the court below, the plaintiff in error has brought the cause into this court, assigning the following errors: x. The court erred in and by its judgment in holding the complaint insufficient and dismissing the action. 2. In determining that the several payments made by the defendant upon the note did not take the case out of the operation of the statute of limitations. 3. In determining that the writing set forth in the complaint was not a sufficient admission, coupled with the other allegations of the complaint, to revive the cause of action. The facts admitted by the demurrer are substantially as follows: That on December 5, 1890, defendant . made and delivered to the plaintiff, in this Territory his promissory note, in writing, for the sum of $6,624.63, which became due and payable one year after date; that at various times during the period of time intervening between ' the maturity of the note and the filing of the complaint in the district court, the defendant made various payments ■on the note to the plaintiff, which were duly credited thereon, the last of such payments being within six years prior to the bringing of the action, and the total payments amounting to $1,956.72; that at the time of the execution of the note the defendant executed and delivered to the plaintiff his mortgage on certain property therein described, to secure the payment of the note; that afterwards, to wit: ■on February 1, 1897, the defendant delivered to the plaintiff a writing as follows: “Las Cruces, N. M., February x, 1897. Dear Reymond: I shall sell out cattle at the first chance. I am tired of the business and want to pay off that mortgage, (signed) Simon B. Newcomb”; and that the mortgage mentioned in said writing is the mortgage given by the defendant to secure the payment of the note sued upon in the complaint. The grounds of demurrer were that the note and original contract are barred by the statute of limitations; that the payments set up did not constitute such a hew promise or admission of the indebtedness, as would renew the contract; that the writing set up in the complaint did not constitute a new promise to pay the original debt, and that the petition stated no cause of action, etc. The two questions presented and argued in the briefs are: first, is the writing set forth in the complaint a sufficient admission that the debt is unpaid to revive the cause of action founded upon the contract, and, second, does a part payment of principal or interest on a promissory note within the period of the statute of limitations toll the statute? A determination of the first question disposes of the case. Htonof-borrow? state.°m sister Our statute, (section 2926, C. L. of 1897) provides that “causes of action founded upon contract shall be revived by an admission that the debt is unpaid, as well as by a new promise to pay the same, but such admission or new promise must be in writing signed by the party to be charged thereby.” We find no case decided by the Supreme Court of this Territory in which this statute has been construed with reference to what shall be deemed a sufficient admission that the debt is unpaid; but observe that in the case of Bullard v. Lopez, 7 N. M. 563, where it was contended that it was apparent from the similarity of the language employed in the Iowa statute and in our statute that we adopted the Iowa statute with the construction placed upon it up to the time of such adoption, this court held that some consideration in construction should be given to that fact when we incorporate into our law a statute of this kind from a sister state, and under the authority of Armijo v. Armijo, 4 N. M. 65, there recognized this principle by adopting the construction of the statute upon the question there in controversy placed upon it by the Iowa courts. The language used in the Iowa act and that used in our act, as to one of the modes in which the cause of action may be revived, being, “by an admission that the debt is unpaid,” and identical, we shall, in recognizing the principle which controlled the court in Bullard v. Lopez, supra, view the alleged admission in this case, upon the question of its sufficiency to revive the cause of action, in the light of the Iowa decisions and give consideration to the construction given similar admissions by that court. The Iowa Supreme Court has, under the statute of that state, held the following to be unqualified and sufficient admissions of indebtedness, either in words or in legal effect: A statement in the mortgage that the premises thereby incumbered were “already subject to a mortgage” in the hands of persons named, held a sufficient admission that the debt secured by a paramount mortgage is unpaid. Palmer v. Baxter, 36 Io. 581. “How will it suit you to make three notes of the amount due you?” describing the proposed notes, was held a sufficient admission of indebtedness to the amount of the notes specified to revive the debt. Wise v. Adair, 50 Io. 104. “I am sorry I cannot pay you now. I had expected to pay you this fall, but owing to scarcity of money I cannot. It is a long weary time I have been paying those debts, and am not through yet. I hope to live to pay you and hope to do so next spring, but I have provided, in case I die before you are paid, my wife will pay you out .of an insurance on my life.” Held sufficient. Bayliss v. Street, 51 Io. 627. “On Saturday I paid S. S. Wilcox interest on $9,000, which you have received probably by this time, part of which was not due. Mr. Wilcox figured the interest out that was not due, saying he did not know how you would like it. If that does not meet with your approval, we will fix it some other way. I had the money and thought you could use it and probably it would not make any difference as I had to get exchange on New York to get it all at one time. The small note Í did not pay as I shall be at considerable expense this summer on my last purchase of Deforest.” Miller v. Beardsley, 81 Io. 721. It will be seen, therefore, that the rule laid down by the Iowa court prior and subsequently to our adoption of the statute is that it is not essential to a revival of a cause of action that the admission be couched in precise and direct terms; but it is sufficient if it show with reasonable certainty that the debt is unpaid. Nelson v. Hansen, 60 N. W. 656; Penley v. Waterhouse, 3 Io. 441; Palmer v. Butler, supra; Mahon v. Cooley, 36 Io. 483; Wise v. Adair, supra. Statute of limitations: reviver by admission. Does the writing relied upon it this case to remove the bar of the statute of limitation show with reasonable certainty that the debt is unpaid ? “Dear Reymond: I shall sell our cattle the first chance; I am tired of the business and want to pay off that mortgage.” Counsel for defendant in error contends that this statement is an admission that there was a mortgage, a hope expressed to pay it off and to apply the proceeds derived from a sale of the cattle thereon; that it was not an admission of the debt as a personal obligation, and was not such an admission from which the law will imply a promise to pay, relying upon the case of Shepherd v. Thompson, 122 U. S. 232, where the Supreme Court of the United States held that a mere acknowledgment of a debt is not sufficient, but that there must be a distinct and unequivocal acknowledgment of the debt as still subsisting as a personal obligation of the debtor. In that case, however, the Supreme Court of the United States was considering a statute in force in the District of Columbia, which is the statute of Maryland, and is quite different from the Iowa and New Mexico statutes, and the case is not in point here. As said in the case of Mahon v. Cooley, supra, the admission alone is sufficient; it is hot regarded as a contract, but is simply a written declaration that the debt is unpaid. The case of Palmer v. Butler, supra, is exactly in point, the admission that the premises were already subject to a mortgage being held sufficient to remove the bar. The construction we place upon the writing is, in view of the facts confessed as true by the pleadings, that the mortgage therein referred to is the identical mortgage given as 'security for the indebtedness • alleged to be due; and thus identified, the expression of a desire “to pay off that mortgage” leaves but little room for further judicial construction. “That mortgage”'was a conveyance of certain personal property to secure the debt of the mortgagor (defendant in error) which- being conditional at the time, would become absolute if at a fixed time the property was not redeemed. “To pay off that mortgage” it would be necessary to pay the debt which the mortgage secured; and the debt which it secured is, as we have seen, the debt in suit; and a desire to pay off a debt, if expressed in the formality required by the statute is in legal effect an admission that the debt is unpaid. We find no reason to sustain the contention of counsel for defendant in error that the expression “I shall sell our cattle first chance,” as used in the writing, conveys the meaning that defendant in error wanted to pay off the mortgage only to the extent that the application of the proceeds derived from a sale of the cattle would admit; though the expression quoted would seem to warrant the inference that the proceeds of such sale would be applied to the payment of the indebtedness. Admissions, couched in less precise and direct terms than the one here in controversy, have been held sufficient . . under the much less explicit statutes of various states. Southern Pacific Railroad Co. v. Prosser (Cal.) 55 Pac. 144; Manchester v. Braender, 14 N. E. 405. We conclude that the admission that the debt is unpaid relied upon in this case, is unconditional, unlimited and reasonably certain, and is, therefore, sufficient, and operated to revive the cause of action founded upon the contract set out in the complaint. The judgment of the court below in sustaining the demurrer and dismissing the complaint was, for the reasons stated, erroneous and is reversed, and the cause should be remanded with directions to the court below to reinstate the cause and to proceed in conformity with law. Miles, C. J., and McFie, J., concur.