Zinn v. Stamm

Miller, J. (dissenting):

It is undisputed that on nine different occasions between January 14 and June 12, 1903, inclusive, the plaintiff loaned to the defendant various sums of money amounting in the aggregate to 110,000. On December 25, 1907, the defendant wrote to the plaintiff the following letter:

“ New York, December 25th, 1907.'
“Dear Martin.— I received your letter of the 23rd inst.^ and regret, the tone of it. You know, that after my last-visit to you, I have been ill- at home for over five weeks, and in the meantime conditions down town had changed greatly, not such as. to enable me to do any business. As a business man you certainly can realize the situation, and that it made it impossible for me to do anything at the present.' I am more, than anxious to relieve myself of my indebtedness to you and would have taken the. steps proposed by me at our last meeting, had I been able to do so, I shall strive to do my very best as early as possible, but may tell you right here, that' for the near future the outlook for my making any money is anything but *81rosy. I assure you, I am feeling bad enough about it, for with all the present gloom, I am very depressed and yours was not the only unpleasant letter I received for Xmas. They only made me feel worse and realize how bad my situation is.
“ Trusting that you will appreciate this and have some more patience; things can’t always remain as bad as they are just now, I remain,
“ Sincerely yours,
“(signed) PAUL STAMM.”

This action was brought within six years thereafter. I do not refer to the other letters in the record because I think the one quoted was sufficient to toll the running of the statute.

Section 395 of the Code of Civil Procedure provides: “An acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest. ” The rule as to the sufficiency of the acknowledgment or promise required has been thus stated: “ The rule with us * * * is, that to revive a demand thus barred, there must be an express promise to pay, either absolute or conditional, or an acknowledgment of the debt as subsisting, made under such circumstances that such a promise may be fairly implied.” (Wakeman v. Sherman, 9 N. Y. 85.) “It seems to be the general doctrine that the writing, in order to constitute an acknowledgment, must recognize an existing debt, and that it should contain nothing inconsistent with an intention on the part of the debtor to pay it.” (Manchester v. Braedner, 107 N. Y. 346, quoted with approval by Cullen, J., in Connecticut Trust & Safe Deposit Co. v. Wead, 172 id. 497.)

We have in the letter quoted explicit acknowledgment of an existing indebtedness, which of course implies an intention to pay, and there is certainly nothing in the letter inconsistent with such an intention. The expression of anxiety to relieve one’s self from an acknowledged indebtedness certainly indicates an *82intention to pay. The mere fact that the writer expressed doubts of his ability to pay in the near future was certainly not inconsistent with an intention on his part to pay. It is not necessary that there should be both an acknowledgment and an express promise. A promise, if relied upon, must of course be unconditional. In this case the plaintiff relies upon an explicit acknowledgment of present indebtedness. The rest of the let.ter emphasizes the intention of the writer to pay, and merely expresses doubt as to his ability to pay as soon as he would like to. It is precisely the kind óf a letter which a debtor might write to an indulgent creditor in the hope of getting time, and, it does not seem to me that it lies in the debtor’s mouth, after he has thus accomplished his purpose, to say that he really did not mean to create the impression in • the mind of his creditor that he intended to pay.

The acknowledgment does not refer to a particular indebtedness or specify the amount, but there is abundant authority that that may be proved by parol. (Manchester v. Braedner, supra; Kincaid v. Archibald, 73 N. Y. 189; Shaw v. Lambert, 14 App. Div. 265; Fletcher v. Daniels, 52 id. 67; Levy v. Popper, 106 id. 394; affd., 186 N. Y. 600.) While the entire sum loaned, $10,000, was advanced on different dates and in different amounts, over a period of a few months, there was in truth but a single indebtedness for the entire sum, and it is obvious that it was so understood by the parties. Of course, technically, there was a distinct implied contract to pay when each sum was advanced, and in law probably each loan was the basis of a distinct claim, but the claims were not so distinct as to create any doubt respecting the defendant’s meaning when he said: “I am more than anxious to relieve myself of my indebtedness to you.” Of course, if there are several distinct claims of such a nature as to create a doubt as to which one an acknowledgment in general terms refers, there is reason for the rule, which has been declared in some jurisdictions, that a mere general acknowledgment in such case will not suffice. But where the claims are so connected as virtually to constitute but one, the acknowledgment can only refer, to the aggregate claim; and I do not think the court should strain to put. an equivocal meaning upon an acknowledgment, made by a *83debtor, which has served the purpose of holding off his creditor until the Statute of Limitations has run, if the acknowledgment be not sufficient to prevent it.

The judgment should be affirmed.

Scott, J., concurred.

Judgment and order reversed and new trial ordered, with .costs to appellant to abide event.