On Petition for Rehearing.
Appellant’s petition for rehearing has attached to it a brief of forty pages in which a large number of authorities are cited in support of various alleged errors in our opinion affirming the judgment below. Two propositions going to the merits are urged. First. That the claims relied upon and set forth in the complaint are liquidated claims, and therefore the compromise and settlement between the parties made on December 4, 1928, and plaintiff’s letter in confirmation thereof amounted only to a receipt and can be taken only as part payments of the several claims. Second. That appellant had a right to apply the $4,000 paid at time of compromise and settlement on these claims as credits and thus lift the bar of the statute of limitations. The letter and compromise and settlement agreement are set forth in our prior opinion. We give attention to each of these propositions.
As to the first. It appears appellant first sued in the state court. He *966there set up nine claims aggregating $46,-000 in their principal sums, but he asked judgment for said principal sums to the amount of $41,500, alleging that “Pierce was indebted to him in the principal sum of $41,500 with interest thereon.” He verified that complaint and later dismissed it without prejudice. He then brought another suit in the state court. He set up eight claims amounting in their principal sums to $44,826.24. He omitted two claims in his first suit 'and added new ones in his second suit, which according to his allegations antedated the bringing of the first suit. He verified under oath the correctness of the statements and allegations in that complaint also. He later ■ dismissed that suit without prejudice. He then instituted this suit in which he set up twelve claims. The total amount of the principal sums here sought to be recovered is $72,000. Some of the claims are based on promissory notes, some on bank checks given by appellee and alleged to have been paid by appellant personally when they were presented to Farmers Savings Bank of New Albin, Iowa, of which he was cashier, on the expectation that appellee would take them up by checks on an Oklahoma bank, which appellee gave and which on presentation were dishonored, and some on bank certificates of deposit issued by appellant as cashier which he loaned to appellee, and some for funds invested by appellant in gas and oil wells which appellee, as alleged, guaranteed would produce and pay back the investment. This complaint was also verified by appellant as true.
The District Judge found: “Now this record discloses there was a dispute between these parties about the amount of indebtedness. There just cannot be any other conclusion reached from the sworn testimony, that they were not agreed upon the amount of the indebtedness.” With this finding from the facts that have been stated we can not accept the contention that appellee’s indebtedness was a liquidated sum.
Some of the obligations set up in the complaint were in writing, some verbal, and some by implication of law. As to the first, they were barred in five years and the others in three years. Appellant attempted to relieve them from the bar by crediting each claimed liability with a sum which he arrived at by apportioning what he received on compromise and
settlement made with appellee. Adding the apportioned sums as made by appellant they .appear to exceed in a substantial sum the $4,000 which appellant received. For that purpose appellant testified that no direction was given by appellee as to application by him of the $4,000. Did appellant have the right to so apply it? We think not. Clearly Pierce had no intention of admitting his liability for the whole indebtedness claimed by Freiberg. Pie would not pay anything until the settlement papers were signed and then paid the $4,000 in accordance with their terms. When he paid, Freiberg delivered to Pierce’s agent who made the settlement one of the notes sued on and testified that the other papers set out in the exhibits to the complaint as the basis of the different counts were locked up in .Freiberg’s bank at New Albin, which was in the hands of a receiver, and for that reason they could not be delivered to him. The principle applicable to the facts here is well stated in Richardson v. Chanslor’s Trustee, 103 Ky. 425, 45 S.W. 774, 778:' “A payment upon a liability, in order to create a new promise or recognition of the liability, must be such as to at least authorize the inference of a promise to pay the residue. In this case the transaction, including the receipt, negatives the idea of a promise To pay, or a recognition that any further sum remained due.7 In Crow v. Gleason, 141 N.Y. 489, 36 N.E. 497, the court said: “In order to make a money payment a part payment, within the statute, the burden is upon the creditor to show that it was a payment of a portion of the admitted debt, and that it was paid to, and accepted by, him as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder. Part payment of a debt is not, of itself, conclusive to take the case out of the statute.” In Cashmar-King Supply Co. v. Dowd & King, 146 N.C. 191, 59 S.E, 685, 686, 14 Ann.Cas. 211, the court quoting from one of its prior decisions said: “A partial payment, though the evidence need not be in writing, being an act and not a mere declaration, revives the liability because it is deemed a recognition of it, and an assumption anew of the balance due. But if, at the time such payment is made, the presumption arising from the unexplained fact is disproved *967by the attending circumstances, or other sufficient evidence of a contrary intent, the payment will not have such effect. Here not only can no inference of such intention be inferred, but there was an express agreement that Hart was not to be held responsible for the residue of his principal’s defalcation, and the payment is made upon that understanding.” See, also, Jones v. Langhorne, 19 Colo. 206, 34 P. 997. It is true that Freiberg and his brother testified that appellee stated that the settlement papers were wanted by Pierce for another purpose and that he expected to pay the balance he owed Freiberg, but Pierce denies that he ever made such statements and Freiberg’s letter to Pierce with the settlement papers can hardly be ignored and avoided by such testimony. Freiberg was a man of business affairs. It can not be believed that he would have let the matter rest solely in parole. We therefore conclude that the statutory bar, without more, was a complete defense against all claims and that the District Judge did not err in directing judgment for appellee.
As heretofore held, objections to procedural matters were not saved.
The motion for rehearing is denied.