Lord v. Harvey

Hosmer, Ch. J. The defendant’s testator, having acknowledged, that he was indebted to the estate of Samuel P. Lord, deceased, said, that he would soon bring in his account, and requested the plaintiffs to prepare their account, that the balance might be ascertained, as it was time it was paid. Whether this is such an acknowledgment of indebtedness as waives the statute of limitations, is the sole question in the case. The recognition of the defendant’s testator, amounts [372] to this : “ I owe you a balance on book, which ought to be paid, and request you to transcribe your account, which, after the deduction of the sum due to me on my book, I will satisfy.” On the part of the defendant, it has been argued, that the admission, to be available, must be of a specific claim, or an ascertained balance; and that the statute is not waived, if the articles, or the amount of the account, are left open to future proof. No case has been cited in support of this proposition ; nor is it sustained, by any of the determinations in relation to this subject. In Lawrence v. Worrall, Peake’s Ca. 93., it was held, by Ld. Kenyon, that an acknowledgment of some money being due, was sufficient to take a case out of the statute ; and a similar determination was made in Peters v. Brown, 4 Esp. Rep. 46. It is, undoubtedly, necessary to the validity of the recognition, that it should admit the existence of a debt; and to this must be super-added, either proof, oran acknowledgement, that it was originally just; but it is not requisite, that the precise amount of the demand should be admitted. The presumption of payment is rebutted, by a general acknowledgment of indebtedness, equally as by the admission of a specific sum. In Lloyd v. Maund, 2 Term Rep. 760., which was an action for work and labour, an ambiguous letter, neither explicitly admitting, nor denying the debt, was left to the jury to consider, whether it amounted to an acknowledgment; but no precise sum was admitted to be due ; and the ascertainment of the debt depended on proof of the performance, and value of the plaintiff’s services. And in Catling v. Skoulding, 6 Term Rep. 193., Ld. Kenyon adjudged, that the acknowledgment of an unsettled account between the parties, the amount of which was after-wards to be ascertained, the jury might consider as a recognition of an open account sufficient to take the case out of the statute. “ This,” said his Lordship, “ I take to have been clearly settled, as long as I have any memory of the practice of the courts.” I am, therefore, of opinion, that judgment must be rendered for the plaintiffs. The other Judges were of the same opinion. Judgment to be rendered for the plaintiffs.