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Fletcher v. Daniels

52 A.D. 67 Court N.Y. App. Div. English

Delivered by Spring, J. :

Contents

Majority

p. 67
Edward B. Fletcher and Francis N. Fletcher, as Executors etc., of William H. Fletcher, Deceased, Respondents, v. Clayton M. Daniels, Appellant.

Headnote

Statute of Limitations—what is an aeknowledgmmt of a debt which takes it out of the operation of the statute.
A letter written by the maker of a note to the payee thereof, relating to .the note; at a time when the note was the only indebtedness due from the maker to the; payee, stating “ I will be there and shall call on you sure and set all things right and to your satisfaction. * * * What we have made out of that (a gun contract) had to go in to complete other contracts now on hand, but which will bring us in a handsome profit and enable me to settle all up with you and pay ‘ interest on interest ’ as well. * * * This matter has troubled me much more than it has you, and I will be a happy man when I get it all made right with you.”
Held,, that this constituted a sufficient acknowledgment of the debt, under section 395 of the Code of Civil Procedure, to take the note out of the operation of the Statute of Limitations.
Appeal by the defendant, Clayton ¡M. Daniels, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the-office of the clerk of the county of Erie on the 6th day of January,. 1900, upon the decision of the court rendered after a trial at the.Erie Trial Term before the court without a jury.
. This action was commenced December 18, 1898, to recover on a. promissory note given by the defendant to the testator of the plaintiffs for the sum of $1,500, dated January 25, 1889, and duo in four months from date, with use. No payments have been made upon the note, and the only question in the case is whether or not a letter-written by the defendant to the payee and holder of the note is a sufficient acknowledgment of the debt to suspend the operation of the Statute of Limitations. The letter reads as follows:
“ Buffalo, N. Y., Nov.-28, 1893.
“ IMy Dear Fletcher :
“ Yours of recent date at hand. It found me sick in bed and on the verge of pneumonia, but am glad to report that I am better now and with good luck will be out in a few days.
“ I fully appreciate your letter and tried to- call on you and let you know all about the ‘giro ’ business and how I was fixed when I was in N. Y. ten days ago, but could not do so and get my train.
p. 68
“ We expect to have a board meeting soon when I will bd there and shall call on you sure and set all things right and to your satisfaction.
“ While we have now plenty of business so far as .the ‘ gun ’ is concerned, yet. as our contracts are not yet completed there has no money come in yet except for one gun that is on the: Brazilian boat ‘ El Cid,’ and what we have made out of that had to go in to complete other contracts now on hand, but which will bring ns in a handsome profit and enable me to settle all up with you and pay ‘ interest on interest ’ as well.
“ I assure you, Fletcher, that this matter has troubled me much more than it has you, and I will be a happy man when I ¡ get it all made right with you. Very truly, etc.,
“C. M. DANIELS.”
The trial court found as a fact that this letter was an acknowledgment of the note indebtedness.
Tracy C. Becker, for the appellant.
Ralph A. Kellogg, for the respondents.

' The. oral proof shows that at the time the letter quoted was written the only indebtedness existing in favor of Mr. Fletcher, the payee, and against the defendant, was that evidenced by the note in suit, and it is conceded that the letter relates to that* note. It unmistakably recognized the existence of an indebtedness and an expectation on the part of the writer to pay it. He intends to “ set all things right and to your satisfaction,” and “to settle all up with you and pay ‘ interest on interest ’ as well,” and that he will be a happy man when I get it all made right with you.”

Section 395 of the Code of Civil Procedure makes an “ acknowledgment or promise ” in writing, signed by the party to be charged thereby, sufficient to take the case out of the operation op the Statute of Limitations. It will be observed the language iised is in the alternative; and a recognition of the debt.an admission that the writer is the debtor of the person addressed,, is all that is necessary to make a new date- from which the statute commences to run. (Cudd v. Jones, 63 Hun, 142 ; Wright v. Parmenter, 23 Misc. Rep. 629 ; Shaw v. Lambert, 14 App. Div. 265 .)

p. 69
It is not essential that the amount or character of the obligation be specified in the written acknowledgment. (Kincaid v. Archibald, 73 N. Y. 189 .)

The defendant can be identified by paroi evidence. (Manchester v. Braedner, 107 N. Y. 346 .)

A promise to pay is not necessary. (Henry v. Root, 33 N. Y. 526 , 530 ; Kahn v. Crawford, 28 Misc. Rep. 572 .)

It is essential that the writing, either in precise terms or fairly construed, disclose a purpose to recognize the claim as an obligation. The letter in suit seems to have been written for the purpose of assuring the holder of the note that, while it had been long overdue, the debtor still had it in mind as a debt against him and still expected to meet it. The reference to the “ ‘ gun ’ business ” was apparently with the object of showing that the defendant still, had money in that venture and anticipated a return therefrom. He did not make his willingness or intention to pay conditional in any way upon the result of that investment. It was rather an extenuation of his failure to pay coupled with an assurance that the obligation would still be met. ■ It is the letter of a man who has a debt which he cannot pay. He keenly feels his inability to do so and is not seeking to shirk the indebtedness, but to quiet his creditor with a promise.

The judgment is affirmed, with costs to the respondent.

All concurred.

Judgment affirmed, with costs.

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