Morris v. Carr , 77 Ark. 228 ( 1905 )

Wood, J.,

(after stating the facts.) 1. There is no dispute here as to the debt, or that the letters in evidence referred to the note in controversy. Appellant simply contends that none of these letters, when taken in connection with the facts and circumstances as understood by appellant at the time they were written, contains a promise to pay the debt, or an acknowledgment from which the law would raise a promise to pay it, and that therefore the bar of the statute applies. It appears that, before the debt was barred, appellee wrote appellant asking whether he desired to pay off the note or use the money another year. Appellant answered, “I will use the money another year.” In response to a similar inquiry in another letter, he replied, “I will retain the money for another year,” and added a postscript, not signed, “When will my interest become due, and how much is it?” In answer to another letter concerning this note, he writes October 20, 1902, “Your letter to hand. I understand you need $125. Send your note to the Bank of Siloam to be fixed.” In response to another letter of appellee’s, in which he had evidently inclosed the note “to be fixed,” appellant wrote him the following letter:

“Siloam Springs, Ark., October 27, 1902.

“Mr. T. G. Carr,

“New Sharon, Iowa.

“Your letter with my note, dated October 15, 1896, and payable bn or before twelve months after date to T. G. Carr or order, for $500, with ten per cent, interest, received. Were there no payments made on this note? It must have been an oversight of me. Please let me hear from you.

. “R. S. Morris.”

The court was correct in its findings of fact and conclusions of law. The Supreme Court of the United States in Shepard v. Thompson, 122 U. S. 231, uses this language: “The statute of limitations is to be upheld and enforced, not as resting only on a presumption of payment from lapse of time, but, according to its intent and object, as a statute of repose. The original debt, indeed, is a sufficient legal consideration for a subsequent new promise to pay it, made either before or after the bar of the statute is complete. But, in order to continue or revive the cause of action after it would otherwise have been, barred by the statute, there must be either an express promise of the debtor to pay the debt, or else an express acknowledgment of the debt, from which his promise to pay may be inferred. A mere acknowledgment, though in writing, of the debt as having once existed is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal acknowledgment of the debt as -still subsisting as a personal obligation of the debtor.”

In Arnold v. Dexter, 4 Mason (U. S.), 122, a party, on his promissory note being produced to him, said: “It is as good as money.” Judge Story, in speaking of this, said: “I think the evidence sufficient to establish a new promise, and to take the case out of the statute of limitations. The defendant did not deny the validity of the note, but, on the contrary, admitted it to be as good as money. How could this be unless he meant that the money was still due on it, and he was responsible to pay it ?” The correct doctrine is stated in 19 Am. & Eng. Enc. Law (2 Ed.), 303, as follows: “An acknowledgment of the claim as an existing obligation is such an admission as the law will imply therefrom a new promise to pay, which will start the statute anew, when it is not accompanied by anything negativing the presumption of an intention to pay the debt.”

In Ringo v. Brooks, 26 Ark. 541, where it was held that the acknowledgment was not sufficient because it did not point out the debt, and was made to a stranger, Judge Searle, in discussing the facts of that case, said: “Like all other acknowledgments and promises having legal force and sanction, they must be made to a party in interest; to the person to whom the debt is due, or one authorized to act for him, and with the intent at the time to pay it.” The court in that case did not say, nor did the court mean, nor was it necessary to hold, that such intention to pay must be expressed in the acknowledgment. All that case meant to hold was that the acknowledgment should be made to the party in interest, and be of such unequivocal character as to recognize the indebtedness as a subsisting obligation, and that there should be nothing in the face of the writing or written evidence of acknowledgment to repel the presumption of an intention to pay which the law raises by such acknowledgments.

Applying these principles to the facts, we are of the opinion that when appellant, in response to inquiries of appellee asking whether he desired to pay the note or use the money another year, answered that “he would retain the money,” he clearly acknowledged the debt as a subsisting obligation. The necessary and natural import of the language, when taken in connection with the inquiry which elicited it, was that appellant already owed appellee money on the note, and that, instead of taking the money which the note called for to pay it, he would further use the money, and let the note which contained his promise to pay run on and be binding from that date. The language of these letters, and of the letters which the appellant wrote after the bar of the statute ha'd otherwise attached, was tantamount to a distinct and unmistakable acknowledgment of the debt represented by the note in controversy as a subsisting obligation.

The trial judge found that the letters referred to supra “were not accompanied by anything-negativing the presumption of an intention to pay the debt.” There is nothing in the proof to warrant this court in overturning this finding.

2. The judgment consists of $500 for the principal,, and $347.90 of accrued interest, at the date of the judgment. Inasmuch as the note sued on did not stipulate that the interest, if not paid, should become a part of the principal, and bear the same, rate of interest, appellant contends that the interest on the judgment should not bear ten per cent. Section 5388 of Kirby’s Digest provides: “Judgment or decrees upon contracts bearing more than six per cent, interest shall bear the same interest as may be specified in such contracts, and the rate of interest shall be expressed in such judgments and decrees.”

The interest due at the time of the rendition of the judgment becomes a part of the amount of the judgment, and by the express terms of the statute the amount of the judgment bears interest at the rate specified in the contract. Badgett v. Jordan, 32 Ark. 154.

Affirm.