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McCOLLUM v. McCOLLUM
Notes — Statute of Limitations — Confirmation of debt — Running of statute.
In an action of assumpsit on certain written obligations, it appeared that the defendant had requested the payee to endorse a note for him, and, on being requested to arrange for the former claims — the basis of the action — said that he would do so if the endorsement were made. These prior obligations were barred by the statute of limitations. They were produced at the time of the interview and the defendant, according to the plaintiff's testimony, said "he would make it all right and send it to me." The plaintiff, accordingly, signed the note as requested, and subsequently brought suit on the two obligations, which the defendant had agreed to take care of.
Under such circumstances, there was sufficient evidence, if believed, to take the claim from the running of the statute of limitations and a verdict for the plaintiff will be sustained.
In order to take a debt out of the operation of the statute of limitations, the debt must be identified, the amount must be specified, or reference must be made to something by which the amount can be definitely and certainly ascertained.
Where a mere acknowledgement of the debt is relied upon, this must be clear, distinct and unequivocal, and must be consistent with, and in such form as to imply a promise to pay on demand.
Argued April 20, 1925.
OPINION BY HENDERSON, J., July 9, 1925:
It is unnecessary to enter into an extended discussion of the law applicable to this case. That has been fully and carefully done by the learned trial judge in the opinion on the motion for a new trial. It is not a sufficient answer to the plaintiff's claim that it was sustained by his testimony alone. He was a competent witness and his evidence having been credited by the jury forms a sufficient support to the verdict. If, as he testified, the conversation between him and the appellant took place with reference to the note and check and receipt which were the subject of controversy, so far as this appeal is concerned, there was a specific identification of the indebtedness. The written obligations of the defendant were produced and commented on and the acknowledgment of the indebtedness was made when the obligations were within the view of both of the parties. On that state of facts we regard the promise as sufficient to remove the bar of the statute.
There is the further feature of the case however that the plaintiff declared not only on the acknowledgment of the indebtedness, but also on a specific promise to pay, made on the occasion; the consideration being the endorsement by the defendant of the plaintiff's note given to the bank to secure a loan. It is admitted that this note was signed as bail and the defendant obtained the money at the bank. A promise has greater force than an acknowledgment. It creates a new agreement and if the plaintiff's account of the transaction is true, there was a new obligation to pay which was sufficient to toll the statute. Whether it was given on the promise set forth in the statement and testified to by the plaintiff, the jury alone could determine. The evidence is fully reviewed by the trial judge and we regard his discussion as a satisfactory disposal of the case.
The judgment is affirmed.
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