Bryan v. Ware , 20 Ala. 687 ( 1852 )

PHELAN, J.

Where there is no conflict in the evidence, it has been held by repeated decisions of this court, that the judge trying the cause may properly charge the jury on request to find for one party or the other, as the. case may be, if they believe the testimony adduced. It is in the nature of a demurrer to evidence. 7 Porter, 258; 2 Ala. 117; 6 ib. 752. We can discover no conflict in tbe testimony in tbis case, and tbe proper construction of tbe letters of Mr. Bugbee and Mr. Bryan, portions of tbe testimony, was matter for tbe court, as tbey were written evidence.

It is argued by-tbe counsel for plaintiff in error, that a subsequent promise is to be implied from tbe receipt by Ware of tbis letter from Bryan, and bis omission or neglect to answer it for so long a time. It is said, that an account furnished by one person to another, setting forth bis claims, when received and not objected to for a length of time, is to be considered a just demand, and acquires tbe character of a stated account. Langdon v. Roane, 6 Ala. 518. Where a man is present and states an account with another, with whom be has bad dealings, both parties, of course, admit expressly tbe correctness of tbe several items, and tbe balance then struct, and if tbe account was then barred by tbe statute of limitations, doubtless such a stated account would remove tbe bar. But are we to carry tbis doctrine to cases where an account, made up by one man and sent to another at a distance, is retained by tbe latter for a length of time without obj ection ? We have been referred to no case, and upon principle we bold tbe thing not to be tenable. If you infer tbe original correctness of tbe account from such a state of facts, and tbe authorities seem to countenance that idea, it is going, in my opinion, full far enough, if not too far, except in special cases. But to infer from süch a state of facts, not only tbe original correctness of .an account barred by tbe statute, but also to go on piling inference on inference, and next infer a present willingness to pay such account, would be wholly inconsistent with tbe object and end of tbe statute of limitations, which is said to be to give repose against stale demands.

Tbis brings us to tbe consideration of tbe letter written by Mr. Bugbee, under tbe instruction of Dr. Ware, to tbe plaintiff and Mr. Abbott. To remove tbe bar of tbe statute of limitations and revive a debt requires, according to tbe more recent current of decisions, either an express promise to pay, or ■a clear and distinct admission of a present or existing indebtedness; because, from such an admission, tbe law will imply a promise to pay, which in such case is equivalent to an express promise to remove tbe bar. In tbe cases of Townes & Nooe, Ex’rs v. Eerguson, and Ross, Creditor, v. Ross, Adm’r de bonis, decided at tbe last term of tbe court, these questions have been recently considered, and tbe rule stated above adopted and followed, and tbe authorities there. cited can be referred to. Pray v. Garulon, 5 Shep. 145.

I have looked carefully into Mr. Bugbee’s letter to Mr. Bryan, and I must say that I do not think it contains either an. express promise from Dr. W are to pay him anything, or a clear and distinct admission that be owes him anything. I re. gard it rather in tbe light of a letter worded with due care and caution, to avoid tbe very thing which the plaintiff in error seeks to establish by it, such an acknowledgment of an old account as would remove the bar of the statute of limitations. Dr. Ware, who knew the date of these services, manifestly did not mean to lose the vantage ground of the statute, and Mr. Bugbee, an experienced attorney, did not intend he should. He begins by informing Bryan that the funds .of the firm had been divided — had nothing in his hands; but then, he proceeds to say, there are some “unsold lands,” and out of the “ proceeds of these,” when sold, “ he desires the payment of all outstanding claims and demands, and for the purpose of ascertaining what those demands are, he desires both you and Maj. Abbott to forward your accountshe adds, that he “has paid Maj. Abbott considerable sums, and does not know what further demands there may be. He is anxious to have all old matters relative to Indian lands adjusted and settled as early as practicable.” I must say, I think that if the terms of this letter will revive the demands of Bryan and Abbott, they would equally deserve to revive every outstanding demand against the firm of S. M. Haggerty & Co. The object of this letter, as I construe it, was to get a sight of the demands of Bryan and Abbott, in order to pay them or not, as circumstances might dictate; and in so doing, carefully to avoid either a promise to pay, or such an acknowledgment of a debt as would remove the bar of the statute of limitations, under which they were then known to rest.

From what has been said, it follows, that tbe charge of the court below was correct, and the judgment is affirmed.