Barnard v. Bartholomew

Dewey J.

delivered the opinion of the Court. We do not perceive any sufficient reason why the letters of the defendant are not to be considered competent evidence to take this case out of the operation of the statute of limitations. Applying the familiar rule, now well settled in this Commonwealth, that in such cases there must be either an express promise to pay, or an unqualified acknowledgment of present indebtedness, and this unaccompanied by any evidence showing a determinaron not to pay, we think that the case of the plaintiff may be well sustained upon the facts reported by the auditor.

It is urged on the part of the defendant, that the written acImowledgment is wholly defective, as evidence, for the purpose lor which it is offered, because it does not state any specific s um to be due to the plaintiff; and also for the further reason, sis to that part of the claim which accrued more than six years before the making of the new promise, that this evidence can only be properly applied to that portion of the account which was not at that time barred by the statute of limitations.

As to the first of these objections, it is, in the opinion of the Court, unavailing, because the plaintiff has, by other evidence, made that certain and definite, which was general and indefinite by the letter itself; and this it was competent for him to do, if the acknowledgment or new promise in the letter was broad enough in its terms to include the specific demands now shown by other evidence to have existed, and yet sufficiently particular clearly to have included them as the subjects of the new promise or acknowledgment.

As to the second, objection, however correct the position *294may be, that where there are various demands subsisting between the parties, it is incumbent on the plaintiff to show clearly to which of them the acknowledgment refers, and in case of the existence of two distinct claims, one of which was collectable by law and the other barred by the statute of limitations, it might well be presumed, in the absence of all evidence applying it to either specifically, that the acknowledgment applied to the one legally collectable, rather than to that which was barred by the statute of limitations, yet in the present case this objection does not seem properly to arise, because the account of the plaintiff to which the new promise is to be applied is one continuous demand, being the book account of the plain tiff extending through a series of years, with credits to the de fendant, and as to which there are no rests, nor have there been any balances struck between the parties during the period of the charges. The new promise may, under the circumstances of this case, be properly applied to the entire account on the books of the plaintiff.

Another question arises, as to the right of the plaintiff to recover interest, and as to the time from which it is to be computed. Interest is to be allowed where there is an expreso promise to pay it, or where there is a usage proved from which the jury may infer a promise to pay ; and also it may be given as damages for the detention of a debt after the time when dun by the terms of the agreement, or for neglect to pay a debt after a special demand.

The right to recover interest in the present case prior to thi? institution of the suit, results wholly from the neglect of the) defendant to pay the debt when demanded. The only evidence of such demana is found in the letter of the 3d of April, 1835-; which authorizes the allowance of interest from that date.

Judgment for the plaintiff.