McDonald v. Grey , 29 Tex. 80 ( 1867 )

Moore, C. J.

It is free from all doubt that an acknowledgment which will, by its immediate effect, take a debt out of the bar of the statute of limitation, must be clear and unequivocal, and neither qualified by conditions nor limitations. (Smith v. Fly, 21 Tex., 353; 2 Pars. on Notes and Bills, 469.)

The terms upon which the debtor predicates his promise or undertaking to pay such a debt are entirely within his own option and discretion, and the creditor can only avail himself of the new promise upon the stipulations with which it is coupled by the debtor; and the burden of showing that this has been done is upon the creditor. (Mitchell v. Clay, 8 Tex., 443; Smith v. Eastman, 3 Cush., 355; Ang. on Lim., 291.)

Whether made before, or after the bar of the statute is completed, the creditor cannot avail himself of an acknowledgment or promise upon condition, or as a matter of compromise, unless it is accepted within the time and upon the terms proffered. This fundamental doctrine in respect to all offers of compromise is as essential and as well recognized in cases of this kind as in any others. (Pool v. Relfe, 23 Ala., 701.)

But, on the other hand, it must he admitted, that an unconditional acknowledgment of a part of the debt, although coupled with a denial of liability for the remainder and a refusal to pay it, if not made as a qualification of the admission, will take so much of the debt as is acknowledged out of the statute. The law will imply a promise to pay the amount admitted to be due. It is not incumbent upon the creditor to. show that he has admitted the validity of the objections of the debtor to that part of the debt which he repudiates, or to show that he had relinquished his claim to it. (Grayham v. Keys, 29 Pa., 189; Hart. Dig., Art. 2388;) [Paschal’s Dig., Art. 4617a, Note 1027a.]

The only question of the least embarrassment presented by the record of this case is, as to the construction and true import of the letter of the appellant, which is claimed by appellee to be an acknowledgment of the justice of that part of the original debt for which he sues. Was the letter intended as a proffer of compromise of a dispute between the parties as to the validity of the note or original debt and appellant’s liability for its payment? Was the admission of a willingness to pay the principal made upon the condition of a release of the interest? Or was it the purpose of appellant, while he admitted freely and unconditionally the justice of the principal of the debt, to appeal to appellant’s liberality and sense of justice as to the interest? We are unaided in the construction of this letter by the light of th§ circumstances under which it was written, beyond those developed by its contents. There may have been, and probably were, circumstances, with the aid of which we might easily determine the true import which it bore in the minds of the parties at the time it was written and received. Guided merely by the letter itself and such facts as are in the record, we are lead to the conclusion, that it was properly construed by the judge in the court below to import an unconditional acknowledgment of the principal of the debt, and therefore furnished a valid cause of action for that amount. Previous to the' letter, it is not shown that appellant claimed or supposed that he could make any defense against a recovery by appellee for the entire debt; nor does the letter induce the belief that he set up any such claim. On the contrary, we think the reverse of this may be fairly inferred. He seems to appeal^ in view of the hardship of his case—the losses which had sustained—to appellee’s generosity and liberality, and not to any legal right on his part. It is true, he subsequently refused to pay the principal and interest, when they were demanded on the note and this letter. But this, it is probable, was after he supposed he was protected by the statute. At least he gave no explanation of the grounds of his refusal, although it was stated in the testimony which he himself gave in the case.

It appears from the record, that the verdict and judgment are for a larger amount than appellants were entitled to recover, but a remittitur having been filed in this court for the excess, the judgment will be reformed and rendered at appellee’s cost for the amount adjudged below, less the sum remitted.

Reversed and reeormed.