Manchester v. Braendner — 12 N.Y. St. Rep. 263

Majority

p. 263

George N. Manchester et al., Resp’ts, v. Philip Braendner, App’lt.^[1]

(Court of Appeals,

Filed November 29, 1887.)

Headnote

1. Statute of limitations—Acknowledqment of debt—Sufficiency of —Code (. iv. Pro., § 395.

The defendant delivered to the plaintiff, to whom he was indebted, an ■order on a third person to pay a specified sum of money to the plaintiff. Held, the order constituted an acknowledgment in writing of the debt within Code Civil Procedure, § 395, and continued the debt for the period of six years from its date.

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2. Same—Oral evidence—When competent.

A writing, in order to constitute an acknowledgment, must recognize an existing debt and should contain nothing inconsistent with an intention or the part of the debtor to pay. But oral evidence may be resorted to in th» cases of writien instruments in aid of the interpretation.

Appeal from a judgment of the supreme court, general, term, first department, affirming a judgment in favor of Elaintiffs on a referee’s report on the trial of all issues by im.

Bartlett, Wilson & Hayden, for app’lt; David Thurston, for resp’ts.

When one delivers to another an order on a third person to pay a specified sum of money to the person to whom the order is given, the natural import of the-transaction is that the drawee is indebted to the drawer in the sum mentioned in the order, and that it was given to-the payee as a means of paying or securing the payment of his debt._ In other words, it implies the relation of debtor and creditor between the parties to the extent of the sum specified in the order and a willingness on the part of the-debtor to pay the debt. The transaction may be consistent with a different relation and another purpose, but in the-absence of explanation, that is its natural and ordinary meaning. See Bogert v. Morse, 1 Com., 377.

The oral evidence shows that the defendant was owing: the plaintiffs the amount specified in-the several orders of June 21, 1876, and that they were given to secure the payment of the debt, thus fully corroborating the inferences-deducible from the orders themselves. We think the orders constituted an acknowledgment in writing of the-debt, within section 395 of the Code, and continued the debt for the period of six years from date.

The decisions as to what is a sufficient acknowledgment of a debt to take it out of the statute, are very numerous and not altogether harmonious. 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. But oral evidence may be-resorted to as in other cases of written instruments in aid of the interpretation.

Consistently with this rule, it has been held that oral, evidence is admissible to identify the^debt and its amount,, or to fix the date of the writing relied upon as an acknowledgment, when these circumstances are omitted (Kincaid v. Archibald, 73 N. Y., 189 ; Lechmere v. Fletcher, 3 Tyrw., 450; Bird v. Gammon, 3 Bing. N. C., 883), orto explain ambiguities. I Smith’s Leading Cases, 960, and cases cited. The promise to be inferred from the order was not condi

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tional, in the sense that the debt was to be paid only out of the fund in the hands of the drawee. At most, there was-an appropriation of that fund for the payment of the debt, but the language of the orders did not import that the debt was to be paid only out of the fund against which they were drawn. See Winchell v. Hicks, 18 N. Y„ 558; Smith v. Ryan, 66 id., 352.

The defendant, by his own act in abandoning the contract with Hoover, the drawee, prevented the payment of the orders, and left him subject to the general obligation of payment resting upon all debtors.

The judgment should be affirmed.

All concur.