Shackleford v. Douglass

[97] Upon the first argument of the cause the following opinion was delivered by Fisher, J. — This was an action in the Circuit Court of Madison county, founded upon a writing obligatory, executed by Norval Douglass and W. H. Crenshaw, payable to Henry S. Douglass, in trust for Mrs. Patsey S. Hall, for the sum of $1,760, and due the 8th day of April, 1838. The Statute of Limitations of seven years was relied on as a defence in the court below. The answer to the complaint avers, that the cause of action did not accrue to the plaintiff within seven years next before the commencement of the suit. The replication, in general terms, alleges that the cause of action did accrue within that time. Upon the trial, a witness was introduced by the plaintiff, and stated that, in the summer of 1850, he-called on Norval Douglass, one of the makers of the instrument-sued on, at the instance of Mrs. Hall, the beneficiary in the note, and demanded payment of the same; that Douglass then said that he would pay the said note, and that the same was a just debt. To the admission of which testimony, the counsel for the defendants below obj ected; but the court overruled the obj eetion. This- action of the court below presents the only question which we deem it necessary to consider. It is, in the first place, said that the action should have been brought upon this new promise, and not upon the original contract. At the time the promise, or admission of the justice of the debt was made, the bar of the Statute of Limitations had not attached, and a promise to pay was therefore unnecessary, in the language of the statute, to save the bar. The mere acknowledgment, upon a presentation of the claim, that it was due and unpaid, was sufficient to stop the running of the statute. A different rule might, perhaps, prevail where the claim was barred at the time of the presentation. An express promise to pay might then be necessary;. and it also might be necessary to bring the action upon such new promise. But where the effect of the promise or admission is-merely to keep alive or to continue in full operation the contract, the action may, and, indeed, ought to be brought upon such contract, upon the plain principle that the suit is merely intended to compel the party to perform his contract; and by his acknowledg [98] ment, he says that the claim presented is his contract; that it is still binding upon him, and is not performed. The object of the testimony was to establish these facts: that the party admitted at a particular time the instrument to be'his contract, and that it was then due, and not performed. The plaintiff undertook to show by the evidence that the defendant’s intestate undertook, or what was equivalent to it, to perform the very contract upon which the suit was brought. It is next said that the plaintiff should have replied the new promise. The whole record shows that the evidence was not objected to on this ground in the court below, but on the ground that the action should have been brought upon the new promise. But it is by no means clear that a special replication was even necessary. The question was whether the cause of action had .accrued within seven years next before the commencement of the :suit; and the plaintiff, to sustain the issue on his part, introduced the witness to prove what the intestate had at a particular time acknowledged in regard to the cause of action; the effect which the law gave to such acknowledgment was to continue in full operation the cause of action. Judgment affirmed. A re-argument was asked for and granted, when the following opinion was delivered:— Per -curiam. — Upon re-argument of this case, the court is of opinion that the views of the case above presented are correct. But another objection is raised under the action of the court below overruling the motion for a new trial, on the ground that there was no evidence that when Douglass made the promise to pay the note, as stated by the witness, Hall, it was presented to him, within the meaning of the 16th section of the Act of 1844. Under the repeated decisions -of this court that objection is well taken, and the judgment is therefore reversed, and the cause remanded for .a .new trial. ¡Fisher, J., dissented from this view of the case.