Citation Numbers: 108 Me. 381
Judges: Bird, Cornish, Savage, Spear, Whitehouse
Filed Date: 10/9/1911
Status: Precedential
Modified Date: 9/24/2021
This is an action upon a promissory note dated June 9, 1900. The action was commenced August 30, 1910. The defense is the statute of limitations. The case comes up on report. The plaintiff seeks to take the note out of the apparent bar
It is provided by Revised Statutes, ch. 83, sect. 100, that "No acknowledgment or promise takes the case out of the operation hereof, unless the acknowledgment or promise is express, in writing, and signed by the party chargeable thereby.”
It is clear enough from the oral testimony in the case that in the expression in the letter "Can’t I fix it,” the defendant was referring to the note in suit, and that the defendant was not indebted to the plaintiff for anything else. But the defendant insists that the identity of the subject matter must appear in the letter itself, and cannot be shown by extrinsic oral evidence. But we think the point cannot avail the defendant. The letter on the face of it evidently refers to some claim or demand which the plaintiff had against the writer, and to a single claim. We think it was competent for the plaintiff to show, as he did, that he had no other claim than the note in suit. And if so, the word "it” in the phrase "can’t I fix it” necessarily referred to that note. In Bailey v. Crane, 21 Pick. 323, a case cited by the defendant, the court, after stating the undoubted rule that an acknowledgment, to take a debt out of the statute, must satisfactorily appear to refer to the very debt in question, said also, with reference to the facts in that case, — "As the defendant has not shown that there was any other debt due from him to the plaintiff, his letter must be presumed to apply to the note in suit.” And the court in the recent case of Cotulla v. Urbahan, 135 S. W. 1159, approved the same doctrine, saying that "if there is only one transaction, a reference to the debt is sufficient as to its identity.”
We think the defendant’s letter in this case falls within the principle thus stated. It would be drawing altogether too fine a point to say that it was not a distinct recognition of the note as an existing debt. And the defendant expressed a willingness to pay it. He proposed to give a new note for the old one, and expressly promised to pay the new note before a time certain. That would be payment. Accordingly we hold that the statute of limitations is not a bar to this action.
Judgment for the fla/intif.