This action was brought to recover the amount of nine separate loans aggregating $10,000, made at different times between January and June, 1903, in amounts varying from $400' to $3,000. Each loan is set out as-a separate cause of action in the complaint and is alleged to have been payable on demand. The action was not commenced until January, 1912. The defendant pleaded the Statute of Limitations as a defense
The plaintiff testified that in September, 1907, he wrote defendant reminding him of a promise which he had previously made to have his life insured so that in case of his death plaintiff would not'lose the principal; that, in answer to the letter, defendant, on the 25th of September, 1907, wrote plaintiff: “It was I who made the proposition about this insurance, and you can feel absolutely assured that I shall do as I told you. I have to attend to a few small creditors first, and then shafi proceed to do as promised. As soon as I arrange this business with Mr. H. you will hear from me, and I will be up to see you.” That thereafter plaintiff again wrote defendant, asking him “to pay me back some of the money I had loaned him,” and the defendant answered on December 25, 1907, saying: ‘ ‘ I received your letter of the 23rd inst. and regret the tone of it. Ton know, that after my last visit to you, I have been El 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 rosy. * * * ”
Hothing further seems to have passed between the parties until about June, 1910, when the plaintiff again wrote asking for a payment and the defendant answered on the twenty-second of the same month, in which he said: “I am in receipt
Plaintiff further testified that the only indebtedness of the defendant to him was that stated in the complaint. The statute provides that: “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. ” (Code Civ. Proc. § 395.). This statute has been many time construed and the rule seems to be thoroughly settled as to what the writings shall contain. In Wakeman v. Sherman (9 N. Y. 85) it was stated that “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.” And in Manchester v. Braedner (107 N. Y. 346): “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.” Both of these authorities were cited with approval in Connecticut Trust & Safe Deposit Co. v. Wead (172 N. Y. 497).
Yotwithstanding the fact that the rule is well settled difficulty many times is encountered in applying it to the facts of a given case. Here the letters undoubtedly acknowledge the existence of an indebtedness from which the law implies a promise to pay, in the absence of a statement inconsistent with an intention on the part of the debtor to do so. There is nothing in any of the letters indicating that the defendant did not intend to pay the indebtedness which he admitted existed. The difficulty which I encounter in holding the defendant liable is whether his admission can be said to apply to any one or all of the causes of action alleged in the complaint. There were nine separate loans made at different times and each
The question was considered in Bailey v. Crane (38 Mass. 323), the court saying: “An acknowledgment to take a debt out of the statute must satisfactorily appear to refer to the very debt in question. (Clarke v. Dutcher, 9 Cowen, 674.) As the defendant has not shown that there was any other debt due from him to the plaintiff, his letter must be presumed to apply to the note in suit. Had there been any other demands between the parties it could not have been known to which it referred, and so it could not be applied to either.”
Also, in Smith v. Moulton (12 Minn. 352), where the court said: “ In the letter of February 6th, 1861, Moulton unqualifiedly acknowledged a then existing indebtedness to Smith, but there is nothing in the letter to show that the acknowledgment had reference to the debts evidenced by both the notes on which the action is brought or to that evidenced by either in particular. * * * . But in this case, even if we leave out of account all other claims of the appellant against Moulton, it
. The defendant, in the letters to which reference has been made, simply acknowledged a general indebtedness. I am Of the opinion that this acknowledgment was insufficient to take the causes of, action sped on- out of the operation of the statute.
The judgment and order appealed from, therefore, should be, reversed and a new trial ordered, with costs to appellant to abide event.
Ingraham, P. J., and Dowling, J., concurred; Scott and Miller, JJ., dissented.