The canse of action, if there is one, arose on the 26th of August, 1891, the time when the plaintiff paid out $500 to secure the return of his collateral. . The action was not commenced until the 4th of October, 1898, and, as conceded in the prevailing opinion, the Statute of Limitations had then run against the claim, unless “ the plaintiff can produce an acknowledgment of the indebtedness, or a promise to pay the debt within six years of the commencement of the action.”
There is nothing in the record, so far as I have been able to discover, in writing by which the defendant recognizes the claim set up in the complaint as binding upon him, or in' which he promises to pay the same. Unless there be such writing, then, of course, the Statute of Limitations is a complete defense, and, it having been pleaded, the judgment must be reversed. Á writing to take a case out of the statute must show that it was the intention of the person by whom it was signed, not only to acknowledge the validity of the debt, but it must contain a distinct and unequivocal promise to pay the same. (Fletcher v. Daniels, 52 App. Div. 67; Shaw v. Lambert, 14 id. 267.) Here there is no such writing. The facts in brief are as follows: John Lyons held 100 barrels of Golden Harvest whisky and 25 barrels of Small Grain whisky as collateral security for the payment of a note made by the plaintiff, payable to the order of the defendant four months from date, for the sum of $2,323.61, upon which, before maturity, the plaintiff paid $500 to secure the return to him of 25 barrels of the whisky. About a year after this payment Lyons delivered to the plaintiff a statement of account, by which he charged the plaintiff with the principal of the original note and gave him credit for the $500 paid, and also for 2,309.72 gallons of whisky at 40 cents — $923.88 — leaving a *59"balance of $1,076.28. From this statement it appears that the plaintiff was given credit by Lyons for the amount which had been paid, and also for a portion of the remaining collateral. All that the correspondence between the parties shows is an effort to arrange for a sale of the balance of the collateral for the mutual benefit of all, to the end that Lyons might receive the amount of the loan and the plaintiff, if possible, be made good for the payment of the $500 before mentioned. Nowhere in the correspondence is there an acknowledgment on the part of the defendant that the amount due is for him to pay, nor is there any promise on his part to pay any-' thing to the plaintiff. It is true that in the letter bearing date the 26th of August, 1892,-he wrote the plaintiff: “I did agree to take care of your first note, which I carried out. I did not agree to take ■care of it for life. * * * I don’t think there will be any loss, so there is no use crying before you are hurt. J ust as soon as I can get to Boston I am coming and will arrange to have a set-to with you.” On October 4, 1892, the plaintiff wrote the defendant.: “Tours of yesterday, at hand. This is all satisfactory only you don’t say anything about the $500 paid by me to Lyons,” to which the defendant replied : “ I have yours of yesterday. It appears to me the $500 you speak of was advanced on the 25 Small Grain, ’88 although I have no statement before me, but I recollect that Lyons advanced 40c on the Golden Harvest So if you will accept draft on the basis of 40c for the 25 bbls. it will be all right when I settle the matter with Mr. L.” On the following day the plaintiff wrote the defendant, as follows: “Yours received. As I wrote, I will not pay for 25 bbls. of the harvest unless I get the $500.00, with interest allowed. All other matters connected with the1 transaction can be settled when you come on, and unless it is so arranged, I expect Lyons will commence a suit of some kind, but I think he will find there are two sides to this business, and on the whole, if you have got whiskey enough to pay in full all the expenses, I should think it would be best for you to devote time enough in some shape to arrange it at once.” To this the defendant replied : “ I have yours of yesterday. I have laid out the tax money on this whiskey, and have done all I can to keep matters, nice and smooth. If you don’t care to be out of pocket a tew dollars until I arrange settlement with Lyons for you, well and good. I don’t see now how there *60can be any ultimate loss; you can facilitate matters by taking 25 bbls. and paying for them now what they are worth, but on the basis of 40c. You can use the whiskey advantageously. If you don’t want to do even that much, all right. I cannot see.how you run any further risk in taking 25 bbls. and paying for them. It would bring about matters to a close. It’s for you to say whether you want to do that much or not.” These letters, it will be noticed,, do not contain any acknowledgment by the defendant of his liability to pay the $500. Hot only that, but when the matter is called to his attention, they show an intention on his part, at least, not to assume the liability for the payment. On December 21, 1892, the defendant wrote the plaintiff, and it is upon this- letter that it is claimed a promise was made sufficient to take the case out of the statute — “ Owing to the financial excitement here I could not get away, but am liable to be over most any day; between how and Hew Year the very first day I can go. notwithstanding that you have done some very foolish talking, entirely uncalled for, I will see that you will be at no loss in the Lyons transaction.” When this letter is read in connection with the other letters, it is perfectly clear that there was no-intention on the part of the writer to acknowledge that he was. legally obligated to pay this debt, nor was there any promise on his part to personally pay it. All that he said was that he would see that plaintiff was at no loss^—that is, he would induce Lyon to pay. Each particular case, of course, must be determined by the facts presented, and when such facts are presented the real question always-is, did the party intend to acknowledge that ■ there was a demand, against him and that it was his intention to pay it ? As I read this, record the defendant did neither. For that reason I am unable tocen cur in the prevailing opinion.
I think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., concurred.
Judgment affirmed, with costs..