Dawson v. King , 20 Md. 442 ( 1864 )

Goldsborougii, J.,

delivered the opinion of this Court:

The principal question presented by this appeal is, whether the evidence submitted by the plaintiff to the jury at the trial of the case, removed the bar of the statute of limitations pleaded by the defendant.

Two prayers were presented to the Circuit Court, one by the defendant “that the evidence in this cause, if believed by the jury, is not sufficient to take the case out of the statute of limitations” which was granted; the other by the plaintiff, enumerating in his prayer, certain items of the evidence, which, if believed by the jury, he claims, would remove the bar of the statute.

The Circuit Court having granted the defendant’s prayer upon the whole evidence, the correctness of that ruling could be ascertained only by ail examination of all tbe evidence. This examination we have carefully made and are of opinion that the prayer was properly granted.

The claim made by tbe appellant upon the appellee, was for wheat seeded on the land purchased by the latter in the fall of 1852.

From the evidence of S. C. Young, it appears that the appellee refused to pay the claim when presented, alleging that he had bought the wheat with the land. This was at the time of the purchase of the land.

George W. Dawson testified on cross-examination, that the appellant stated to him, that he, the appellant, “proscntecl the account to the defendant on the 3rd day of January 1853, “and that the defendant refused to pay the same, insisting that the wheat was purchased with the land and was included in the thirty dollars per acre given by him for the land.”

It does not appear from the record that any further demand was made on the appellee for the payment of this claim until March 1856, when the witness Dawson, professing to act as the agent of the appellant, met the appellee and presented the account for payment. This is the account set out in the record.

At this meeting the conversation detailed by Dawson in his evidence, took place, and the statements made by the appellee are relied on to take the case out of the statute. Whether they were sufficient .for that purpose, must depend upon the inquiry, did they amount to “an admission of a present subsisting debt,” of which character must be an acknowledgment to take the case out of the statute. See 4 G. & J., 509.

In view of the positive refusal of the appellee to acknowledge the appellant’s claim, his subsequent conduct and declarations as detailed by Dawson, his taking a copy of the account, his statement that the claim was of long standing and ought to have been settled before, but was a matter in which Mr. Young was equally interested with him, can, by no legal intendment, be held to be “an admission of a present subsisting debt,” nor can a new promise be deduced from the evidence as a legal implication.

In the case of Higdon’s Adm’rs vs. Stewart, 17 Md. Rep., 111, it is said, “the declaration or acknowledgment must be taken as a whole, and it cannot be disproved as to any part; offered by the plaintiff as his proof he will not be allowed to adopt the admission and reject the qualification.”

We concur in the ruling of the Circuit Court in granting the appellee’s prayer; and as the prayer submitted by the appellant if granted, would have placed the Court in opposition to itself, it was properly rejected.

(Decided Jan. 8th, 1864.)

We deem it unnecessary to express any opinion upon the point made by tbe appellee under the statute of frauds. Oar decision apon tlio quesiion of tbe statute of limitations is conclusive of tlie wliole case.

Judgment affirmed.