Hamilton v. Beaubien

The opinion of the court was delivered by Johnston, C. J.: The sole question presented on this appeal is whether or not certain letters set out in appellant’s petition were sufficient to toll the statute of [945] limitations on a certain promissory note. Holding that they did not, the trial court sustained appellee’s demurrer to the petition. It appears that on May 20, 1907, the appellee, H. E. Beaubien, gave his certain promissory note, by which he promised to pay, in seventy days thereafter, $300, with interest at ten per cent per annum from dáte until paid, to Dr. W. C. Hamilton or order. Hamilton, as it was alleged, transferred the note by indorsement on September 1, 1912, to the appellant, Lela Hamilton. It was also alleged that after the maturity of the note and up to December 1, 1912, Hamilton, the payee, made frequent demands on Beaubien for payment, and in answer to an urgent demand the. appellee wrote Hamilton under date of February 11, 1910, in which appellee said that he had “expected to make a little raise of some money and go down to Topeka to see you this winter, but was disappointed,” and then added, “Just as soon as I get hold of a little money I will either send it to you or come down myself.” On August 3, 1911, appellee answéred a letter of the payee and said in part, “I will send you all the money I can as soon as I thresh. Probably about the first of September.” To one of appellant’s attorneys, with whom the note had been placed for collection, the appellee wrote, in part, under date of October 6, 1912: “I regret to hear of Dr. Hamilton’s illness and regret still more on account that I can do nothing at this time to help out. If I could even send him a little something so he might know .1 had not forgotten him I would feel better. “You don’t realize how I regret it for Dr. Hamilton has been a good friend to me and it hurts me more than I can tell that I am unable to do my duty by him. I am getting better now and am in hopes that in a short time I may be able to send them some money. I would like very much to go and see the Dr. He has been on my mind a great deal this summer but I can’t go near him until I can bring him some money. I sincerely hope my old friend will regain his health, and that I may be able to send him some money in .the [946] near future. Will you kindly explain this to Mrs. Hamilton and tell her that I will do my best to raise some money for her.” These- are the only statements in Beaubien’s letters which bear upon the acknowledgment of the indebtedness. It will be observed that the debtor does not mention his note nor refer to any particular demand or debt and nothing is said about the character or amount of the debt. If we may look to other sources for the identification of the demand there is still nothing in the letters which constitutes an unqualified acknowledgment of a present, subsisting debt upon which he is liable. In Hanson v. Towle, Adm’r, 19 Kan. 273, it was held that a mere reference to an obligation or instrument wherein the debtor spoke of raising and paying money and did not even question the binding obligation of an instrument was not such an acknowledgment as was contemplated by the statute, but that in order to bar the limitation “There must be an unqualified and direct admission of a present subsisting debt on whieh the party is liable, and which he is willing to pay.” (Syl. ¶ 4.) In Elder v. Dyer, 26 Kan. 604, 40 Am. Rep. 320, the court disapproved of the clause used in Hanson v. Towle, Adm’r, “which he is willing to pay.” It was reiterated there, however, that a reference to a demand or instrument which might or might not be valid did not, of itself, constitute an acknowledgment of a present.and subsisting liability. Some language was used in Elder v. Dyer which might seem to modify the rule of Hanson v. Towle, Adm’r, in other respects, but the doctrine of that case was expressly reaffirmed in Haythorn v. Cooper, 65 Kan. 338, 69 Pac. 333, where the debtor, in terms, referred to a mortgage made by him and owned by the holder, and it was held that notwithstanding the expression in Elder v. Dyer there must be an unqualified and direct admission of a [947] present, subsisting debt on which the party is liable. It was also remarked that: “Statutes of limitation are statutes of repose. One seeking to evade their result must bring himself within the terms of the statute which raises the bar. A writing which is no more consistent with the claim that an acknowledgment was intended than with the claim that it was not is not sufficient to remove the bar.” (p. 340.) In the recent case of Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479, the rule of Hanson v. Towle, AdM’r, was again approved, and it was there held that: “An acknowledgment in writing that a debt once existed, but which does not contain an admission of a present, subsisting debt on which the party is liable, is insufficient to avoid the bar of the statute of limitations.” (Syl. ¶ 3.) Other cases supporting that view are: Durban v. Knowles, 66 Kan. 397, 71 Pac. 829; Good v. Ehrlich, 67 Kan. 94, 72 Pac. 545; Richards v. Hayden, 8 Kan. App. 816, 57 Pac. 978. The phraseology of an acknowledgment is not important, but to remove the bar something more than vague general expressions of a desire and purpose to pay money to another is necessary, and nothing short of a distinct, direct and unequivocal admission of a present, subsisting liability is sufficient. Beaubien’s letters contain expressions of a desire to help Hamilton and of a purpose to raise and pay money to him, and they also contain an expression of regret that he has not been able to do his duty towards Hamilton, but an examination of the letters shows that they fall short of an admission from which an acknowledgment such as the statute contemplates may be implied. The judgment of the district court will be affirmed.