Loomis v. Decker

By the Court.

Hilton, J.

To revive a debt barred by the Statute of Limitations, where there is no express promise to pay shown, hut one is sought to be implied from an acknowledgment of the indebtedness, the acknowledgment should contain an unqualified and direct admission of a previous subsisting debt, for which the party is liable and willing to pay; or, in other words, there should be a clear recognition of the present existence of the demand from which a promise may he implied, and the recognition must be unaccompanied by any circumstance calculated to repel the presumption of an intent or promise to pay. Sands v. Gelston, 15 Johns. 511; Purdy v. Austin, 3 Wend. 189; Bell v. Morrison, 1 Peters, 357; Stafford v. Bryan, 2 Paige, 45 ; Allen v. Webster, 15 Wend. 284; Stafford v. Pickerson, Id,, 302; Bloodgood v. Bruen, 4 Selden, 362 ; Wakeman v. Sherman, 5 Id, 85 ; Mosher v. Hubbard, 13 Johns. 510.

Tested by these rules, the letter of the defendant was sufficienfc to charge him. with the liability sued on. It was, in substance, that he did not recollect when the claim arose, but notwithstanding this, if he had received the powder which formed the subject of the debt, and the bill for it was right, he would make it.satisfactory. To this he adds, that he has certain Rail Road Bonds which he had purchased at 85 cents on the dollar, and hoped they would be accepted in payment, as money was out of the question.

The fair inference from such language, I think, is, that on the indebtedness being shown to have existed, he would make it satisfactory to the plaintiffs by paying it. Heyling v. Hastings, 1 Salk. 29; Stanly v. Champlin, 4 Johns. 461. That he had certain property more than sufficient to pay the claim, but no money, and he therefore hoped that the plaintiffs would be satisfied by taking the property at a rate of value to be adjusted. Brown v. Keach, 24 Conn. 73; Edmonds v. Goater, 9 Eng. Law & Eq. 204; Hooper v. Stevens, 7 Car. & Payne, 261.

There was nothing in this calculated to raise an inference that he intended to avoid the payment- of the claim, provided its correctness was shown, and as its validity was admitted by him at the trial, I think the Justice properly construed the acknowdedgment to be such a one as from which a promise to pay might fairly be inferred, and his finding, in this respect, like the verdict of a Jury, should be regarded as final, under the circumstances showm, and 'ought not to be disturbed. Watkins v. Stevens, 4 Barb. 160.

Judgment affirmed.