Durban v. Knowles

The opinion of the court was delivered by Johnston, C. J. : It is conceded that this action is barred unless the letter set forth in the foregoing statement constitutes a statutory acknowledgment of an existing liability. The statute prescribes that it must be a written acknowledgment of an existing liability, signed by the party to be charged thereby. (Code, §24; Gen. Stat. 1901, §4452.) This provision has been frequently interpreted and applied, and it has been held that the acknowledgment must be distinct, unequivocal, and without qualification, and that nothing less than a direct admission of a present existing liability is sufficient. (Hanson v. Towle, Adm’r, 19 Kan. 273; Elder v. Dyer, 26 id. 604, 40 Am. Rep. 320; Gragg v. Barnes, 32 id. 301, 4 Pac. 276; Haythorn v. Cooper, 65 id. 338, 69 Pac. 333.) A mere mention of an indebtedness, or a suggestion with reference to it which does not distinctly recog [400] nize an existing liability, will not remove the bar. It is not necessary that the acknowledgment be in the terms of the statute, or any other set phrase, for, if the admission be such that a present existing liability is necessarily inferable from the language used, it will take the case out of the statute. We conclude, however, that the language of the letter relied on here falls considerably short of a direct, unequivocal and unqualified admission of a present existing liability of the writer. It will be observed that the defendant was not the maker of the note, and that the certificates of deposit were original liabilities of the Bank of Brookville. While there is a reference in the letter to the certificates and note, no mention is made of the contracts of guaranty upon which the action was brought. No statement is made that he was ever liable on the notes or certificates, and no reference whatever is made to any liability on the guaranties. The language in the letter on which reliance is mainly placed is as follows : “Nearly all my creditors have been very lenient and are disposed to be so, but a few required payment, and by great sacrifice I have met their demands. I can do nothing more now in that line. I regret very much that you should suffer from my son’s failure, and if it was possible I would protect you. I assure you that if it is ever in my power to do so I will remember you among the first.’’ The reference to his creditors is too general and indefinite to be regarded as a sufficient recognition of liability. In this part of the letter he expresses regret that Harbach, the holder of the paper, should suffer from his son’s failure, and he accompanies it with the statement that if it were possible he would protect Harbach. The natural implication of the language is that he would protect Harbach against [401] the son’s failure and debts, and in that connection he tenders the assurance that, if it is ever in his power to do so, he will remember. Harbach among the first. It will be observed that he says nothing about his own liability to Harbach, nor anything from which an admission of an existing liability is necessarily inferable. The language is more nearly a recognition of the son’s liability than of his own, but, in any event, there is not that direct, unequivocal and unqualified admission of a present existing liability of himself necessary to take the case out of the statute. The judgment of the district court will therefore be affirmed. All the Justices concurring.