Limitations, Statute of. Evidence, Presumptions and burden of proof. In an action upon a promissory note which fell due more than six years before the action was commenced, where the defendant pleaded the statute of limitations, if the plaintiff introduces in evidence a letter from the defendant to the plaintiff's wife, dated less than six years before the date of the writ, in which he stated, "you will get your money some day with interest if it is any way possible for me to do it;" and another letter to the plaintiff dated a few days before the date of the writ, in which he stated, "If you will send me the dates and amounts of payments, so that I can compare with my account, I think a little later as soon as things start up I may be able to do something for you," and if there is no evidence warranting a finding that the defendant had become able to pay the note, the evidence will not warrant a finding of an acknowledgment of or of a new promise to pay the obligation, and a verdict properly may be ordered for the defendant.
In this action, the evidence of the defendant's circumstances was held not to be sufficient to warrant a finding that he had become able to pay the note.
RUGG, C.J.
This is an action upon a promissory note. The defence is the statute of limitations. The plaintiff contends in avoidance of that defence that the evidence showed a sufficient acknowledgment and promise in writing within R.L.c. 202, § 12. Reliance in support of that contention is placed upon two letters of the defendant. The one under date of June 16, 1910, was written to the plaintiff's wife some time before the expiration of six years from the time of the last payment on the note. Its pertinent words are, "I have received a notice . . . in regard to the note of $500. . . . Now this seems very hard to me, as you well know that I should have paid the note and interest long ago if I had been able. . . . It seems as if in our relations that you might give me a little better chance than to place this in the hands of an attorney for collection, as you well know that you will get your money some day with interest if it is any way possible for me to do it." Whatever else may be said about these words, it is plain that at most they amount only to a conditional promise to pay when the promisor is able. There is no evidence in the record that the condition has been performed by his becoming able to pay. Mitchell's claim, L.R. 6 Ch. 822, 828. Custy v. Donlan, 159 Mass. 245. It was no new promise within the statute. Wald v. Arnold, 168 Mass. 134.
The defendant's letter to the plaintiff of April 8, 1915, contained these words: "If you will send me the dates and amounts of payments, so that I can compare with my account, I think a little later as soon as things start up I may be able to do something for you." This was not an unqualified acknowledgment from which a new promise may be inferred. Boynton v. Moulton, 159 Mass. 248. Krebs v. Olmstead, 137 Mass. 504. Gillingham v. Brown, 178 Mass. 417. Weston v. Hodgkins, 136 Mass. 326.
There was nothing to indicate that the defendant ever had been able "to do anything" for the plaintiff. Gillingham v. Brown, 178 Mass. 417. Wenz v. Wenz, 222 Mass. 314, 321.
Exceptions overruled.