Taylor v. Hendrie

By the Court, Whitman, C. J.: To this action on a promissory note the appellant interposed a plea of the statute of limitations. To take the case therefrom the respondent relied upon the following letter : “Hamilton, Jan. 14, 1869. “Mr. A. A. Curtis : Dear Sir: — I received a letter from some one, I suppose it was from' Huber, it had no signature. I send you five hundred dollars and want you to send me his note and apply the balance on Richards’ note and I will send the balance on receipt of your letter. Tours truly, W. Hendrie.” [246] Upon the Richards’ note (the one in suit), of which at the date of the letter quoted the deceased was the holder, two hundred and five dollars wgre paid by Curtis; and this completes the evidence. Part payment under our statute does not avail to raise its bar. Wilcox v. Williams, 5 Nev. 206. It does not appear. that Curtis was authorized to or did make any such promise as the statute requires. Nor can the declaration to Curtis by appellant be considered such promise. The statute of this State is clear and explicit; it relieves the necessity of considering the many decisions, to some extent conflicting, of what is an acknowledgment or- promise sufficient to avoid the statutory bar. It is provided that “no acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this statute, unless the same be contained in some writing signed by the party to be charged thereby.” Stats. 1861, 31, Sec 80. It is evident that the statute contemplates a new or continuing contract, to be evidenced by a written acknowledgment or promise; such acknowledgment or promise to avail must be made by the party or his authorized agent to some one having interest or authority to receive the same; and so it follows that the promise so-called made to Curtis can not satisfy the statute, being made to one who at best was only the special agent of appellant for a specific purpose, and in no sense the agent of respondent’s decedent, but to him a stranger. But apart from this statute, which is to some extent peculiar as has been shown in Wilcox v. Williams, supra, the weight of authority is to the same effect. It was well said in Kyle v. Wells, 17 Penn. State Rep. 286: “There is a maxim in the Roman lawyer extraneampersonam nihil nobis acqmri potest,' through a stranger we can acquire no rights; and though this maxim is not found in our law, yet its principle' is at the foundation of all our rules as to the priority of the contract and estate and as to matters inter alios actce. If then the defendant had expressly told the witness that he [247] would call and pay, this would have been but the expression of a determination revocable at pleasure and would have created no legal duty. It is a perversion of the word promise to apply it to a declaration made to one who has no interest in or connection with the subject spoken of, and! we cheat the law and morality too of their rights when we distort the meaning of words in order to reach a desired conclusion.” 1 Bouv. Inst. 339; See also, Keener v. Crull et ux., 19 Ill. 189; Gillingham v. Gillingham, 17 Penn. State, 302; Bradford v. James, 3 Strob. 171; Hill v. Kindall, 25 W. 528; Bloodgood v. Brown, 4 Seld. 362. As there was no sufficient, acknowledgment or promise to evidence a new or continuing contract, the appellant’s plea was good and should have been sustained. The order and judgment against him are therefore reversed and the cause remanded. Hawley, J., having been of counsel for appellant, did not participate in the foregoing decision.