Johnston v. Hussey , 89 Me. 488 ( 1897 )

Emery, J.

This was an action by a married daughter against her father to recover for supplies furnished her father and mother. The action was prima facie barred by- the statute of limitations pleaded by the defendant. Within six years before the date of the writ, however, the husband of the plaintiff wrote out a statement of the supplies and services furnished, as set out in the account annexed to the writ. This statement was in the form of a letter written to the brother of the plaintiff and was signed by the writer. Under the signature of the writer was added the signature of the father. Under their signatures was a statement signed by one Plattie M. Johnston to the effect that the father acknowledged the accounts as valid and the statements true. It is to be noticed, however, that this latter statement was not signed by the father. His signature only applied to the letter itself. The presiding justice ruled that the letter signed by the father was sufficient to remove the bar of the statute of limitations, and the jury found for the plaintiff.

After much and varying judicial exposition, statutes of limitations are now almost universally held to be statutes of repose, to be interpreted and applied to effect that purpose. Any act or declaration interposed to defeat or postpone that effect is to be closely scrutinized. The legislature of this state has enacted that no acknowledgment or promise by the defendant shall defeat or postpone the operation of the statute “unless the acknowledgment or promise is express, in writing, and signed hy the party chargeable thereby.” R. S., chap. 81, § 97. The acknowledgment must be in writing, — must be contained and found in the writing. It must be an “ express ” acknowledgment also. It is not enough that the original promise is proved. The new promise or acknowledgment must be proved to have been expressly made, and the proof of this must be in the signed writing. The acknowledgment must also at least savor of a promise to pay. It is not enough that a jury could, or probably would, infer a new promise from the terms of the acknowledgment. The terms must be such that the court itself will infer a new promise from them. The most profuse acknowledgment of gratitude, or of any other moral obligation, for articles or services furnished will not do. The acknowledgment must be of an existing legal cause of action. It must show a recognition of a legal obligation and an intention, or at least a willingness, to be bound by it. It must be an acknowledgment of a legal debt, a legal duty. A mere acknowledgment that a cause of action once existed is not enough. A full acknowledgment of all the facts alleged by the plaintiff will not suffice unless there appears also a recognition of the legal duty. In fine, in the words of the usual replication to the plea, it must appear from the writing alone that “the defendant promised within six years.” Wood on Lim. pp. 128, 129, 189 and notes; Perley v. Little, 3 Maine, 97; Porter v. Hill, 4 Maine, 41; Miller v. Lancaster, 4 Maine, 159; McLellan v. Allbee, 17 Maine, 184; Warren v. Walker, 23 Maine, 453; Lunt v. Stevens, 24 Maine, 534; Perry v. Chesley, 77 Maine, 393; Bangs v. Hall, 2 Pick. 368; Barnard v. Bartholomew, 22 Pick. 291-3; Weston v. Hodgkins, 136 Mass. 326; Clementson v. Williams, 8 Cranch, 72; Bell v. Morrison, 1 Pet. 351; Shephard v. Thompson, 122 U. S. 231.

Recurring now to the writing to be construed in this case, it may be conceded that the father acknowledged in writing over his own signature that the plaintiff paid bills for him and his wife, and furnished money, provisions and clothing to them, as shown by the memorandum in the letter, and the same sued for. But we do not find in. the letter any intimation that the plaintiff intended to charge her parents or either of them for such assistance. Neither the letter nor the memorandum in it contains any words of charge. No claim.is made in the letter that the plaintiff had any right of action therefor. On the other hand, it appears from the letter that the plaintiff was living with her parents at the time. It is stated that she “cared for her parents filially.” Indeed, throughout the letter the writer claims for his wife credit for her generosity in so freely relieving her parents’ necessities, and repels the suggestion that he or she had acted toward them unfairly or ungenerously. The father by signing the letter may have acknowledged in writing the kindness of his daughter and the justice of her claim that she had been filial and generous; but we do not find in the letter any words indicating that the father promised to make, a money payment for the services and supplies, or that he expressly acknowledged any liability therefor.

It is suggested that the father, beside signing the letter, acknowledged the account to be valid. But this acknowledgment of the validity of the account is not signed by the father and hence is not his written acknowledgment. It is suggested, again, that as the jury found for the plaintiff, it must be assumed that the father did originally promise to pay for the services and supplies, and hence- his written acknowledgment that he received them is an acknowledgment of his legal liability to now pay for them. This does not follow. The writing signed by the father is alone to be searched for evidence of a promise. This search is to be made by the court, not by the jury. The opinion of the jury is immaterial.

Exceptions sustained.