Bell v. Morrison. 1 P.

The first and leading case is Bell v. Rowland's administrators, in Hardin's Rep. 301. In that case the defendant made an acknowledgment, "that he had once owed the plaintiff, but he supposed his brother had paid it in Virginia, (the place where the original transaction took place, in the year 1785;) and, if his brother had not paid it, he owed it yet." The court held that the acknowledgment was not sufficient to take the case out of the statute; that the defendant was not bound to prove that his brother had not paid the debt; that the law would imply a promise only where the party ought to promise; and that the defendant ought not to have promised, under the circumstances of that case, to pay a debt which he supposed to be paid. But the general reasoning of the court, which is drawn up with great clearness and force, goes much further. The court said that the English decisions were not obligatory upon them, in the construction of their own statute, although similar in its provisions to the English statute; and that so far as they had gone upon nice refinements, for the purpose of evading the statute, they must be disregarded. If the slightest acknowledgment; if strained, constructive acknowledgments and promises, are held sufficient, it must multiply litigation, produce endless uncertainty, and, it is to be feared, a fruitful crop of perjuries.

Slight circumstances and a man's loose expressions would be construed into a full acknowledgment of the debt, when he himself neither intended to make nor understood himself as making any acknowledgment at all. Instances of this sort are frequent in the books, but the example is too dangerous to be countenanced. And the court further declared: "Upon the whole, we are of opinion that the only safe rule that can be adopted, capable of any reasonable certainty is, that, in order to take the case out of the statute of limitations, an express acknowledgment of the debt, as a debt due at the time, coupled with the original consideration, or an express promise to pay it, must be proved to have been made, within the time prescribed by the statute."

There was another point in the case deserving of notice,

* which was, whether the court ought to have instructed the [ *364 ] jury as to the law of the case, and then have left it with them to determine whether an acknowledgment of the debt, and a promise to pay it, had been proved to have been made within the five years; upon which it was held that it was competent for the court either to do so, or, (as it did in that case,) taking the whole of the evidence on the part of the plaintiff as true, and the facts sworn to by the witnesses as sufficiently proved, to instruct the jury as to the law arising upon those facts.

Bell v. Morrison. 1 P.

This case has never been departed from in Kentucky, and has been frequently recognized. In Harrison v. Handley, 1 Bibb, 443, the plaintiff, to take the case out of the statute, produced a witness who swore "that some time in May or June, 1796, he presented an account to W. H. (the defendant,) amounting to £250 or £260; that H. objected to certain articles in the said account, and after the said articles were stricken out of the account, H. then acknowledged it was all right. The court below ruled that this was such an acknowledgment as took the case out of the statute, but the decision was reversed by the court of appeals. Mr. Chief Justice Bibb, in delivering the opinion of the court, adverted to the case of Bell v. Rowland's administrators, and recognized its authority in the fullest terms. And after expressing a doubt whether an implied promise would not be barred by the statute, he proceeded to say: "Be that as it may, mere loose expressions and vague acknowledgments will not suffice. The acknowledgment from which the law is to raise a promise contrary to the provisions of the statute, must be clear and express, where the mind is brought directly to the point, debt or no debt, at the present time; not whether the debt was once an existing debt. That the law will argumentatively make it a debt in præsenti, if the party does not in his acknowledgment say it is not, or prove payment, is a proposition that cannot be granted in opposition to the provisions of the statute. Where the limitation has run, to get clear of it, the whole burden of proof is thrown on the plaintiff to prove a good and subsisting debt, and a promise to pay within the period prescribed to his action. The acknowledgment of H. does not come up to this requisition. There was no express promise to pay; there was no express acknowledgment of a then subsisting debt; there was no assent to pay. "H. then acknowledged the amount was all right," is too loose, vague, and indefinite an acknowledgment to revive a transaction, and put it under investigation again after the law had closed it. That the amount was right could be true, and might well be ac

knowledged, if the articles had been truly noted, notwith[ *365] standing * the party might have paid it or was unwilling to acknowledge it as a debt then subsisting; and that is the point to which an express acknowledgment should have been proved." This is certainly a very strong case to illustrate the rule adopted in Kentucky.

In Gray v. Lawridge, 2 Bibb, 284, it was proved on the trial that the party had admitted the justice of the account within five years, and that it might go in discharge of the interest due on a bond of the defendant, on which the suit was brought by the plaintiff. The witness did not know the particular items of the account, nor the

Bell r. Morrison. 1 P.

amount thus acknowledged by the plaintiff. The court held that the acknowledgment did not go further than that the demand should be allowed in payment of the interest; and that so much as the party could show of a debt due to him, not exceeding the amount of the interest then due, was taken out of the statute, and no further. In Ormsby v. Letcher, 3 Bibb, 269, it was decided that an agreement of the defendant within five years, that a settlement made with the brother of the defendant should be subject to the examination of either party, did not take the case out of the statute. It may be inferred that it was a settlement of accounts between the parties, and that the action was brought for the balance due to the plaintiff; although the report does not so state. The court said: "this agreement does not contain an acknowledgment of a subsisting demand, and a promise to pay in consideration thereof." The language of this case, as well as that in Harrison v. Handley, might lead to the impression that the court thought that an acknowledgment of a subsisting debt was not alone sufficient; but that there must be also a promise to pay the debt. But perhaps it is more correct to construe it as importing no more than that there must be such an acknowledgment, coupled with circumstances, from which a promise to pay would naturally and irresistibly be implied.

These are all the decisions which we have met with in the Kentucky Reports on this point. They evince a strong disposition in the courts of that State to restrict, within very close limits, every attempt to revive debts by implied promises resulting from acknowledgments and other confessions by parol. It is our duty to follow out the spirit of these decisions, so far as we are enabled to gather the principles on which they are founded, and to apply them to the case at bar.

The evidence, in the case at bar, resolves itself into two heads: first, whether the admission of a party of the existence of an unliquidated account, on which something is due to the plaintiff, but no specific balance is admitted, and no document produced at the time from which it can be ascertained what the parties [* 366 ] understood the balance to be, is sufficient to take the case out of the statute, and let in the plaintiff to prove, aliunde, any balance, however large it may be; secondly, if not, whether the admission on the part of Morrison, of his willingness to pay $7,000, and close the business, might, under all the circumstances, entitle the plaintiff to recover that amount, and thus to furnish a just objection to the ruling of the circuit court.

In both of these views the case is not without its difficulties; and the Kentucky decisions present no authority directly in point.

Bell v. Morrison. 1 P.

The evidence is clear of the admission of an unsettled account, as well from the letters of Butler, as the conversation of Morrison. The latter acknowledged that the partnership "was owing" the plaintiff; but as he had not the books, he could not settle with him. If this evidence stood alone, it would be too loose to entitle the plaintiff to recover anything.. The language might be equally true, whether the debt were one dollar or ten thousand dollars. It is indispensable for the plaintiff to go further, and to establish, by independent evidence, the extent of the balance due him, before there can arise any promise to pay it as a subsisting debt. The acknowledgment of the party, then, does not constitute the sole ground of the new implied promise; but it requires other intrinsic aid before it can possess legal certainty. Now, if this be so, does it not let in the whole mischief intended to be guarded against by the statute? Does it not enable the party to bring forward stale demands after a lapse of time, when the proper evidence of the real state of the transaction cannot be produced? Does it not tend to encourage perjury, by removing the bar upon slight acknowledgments of an indeterminate nature? Can an admission that something is due, or some balance owing, be justly construed into a promise to pay any debt or balance which the party may assert or prove before a jury? If there be an express promise to such an effect, that might be pressed as a dispensation with the statute; but the question here is, whether the law will imply such a promise from language so doubtful and general. The language of the court, in Harrison v. Hanley, was, that "mere loose expressions or vague acknowledgments will not suffice." We think that such a general admission of an unsettled account, and of an indeterminate debt, would by the courts of Kentucky be held as too vague an acknowledgment to take the case out of the statute. It would not establish any particular subsisting debt, and therefore be destitute of reasona ble certainty to raise an implied promise.

The other point is also not without its embarrassments. Was

Morrison's offer of $7,000, to close the business, the abso[ *367 ] lute admission of a debt to that amount, or a *conditional promise to pay that sum, if the party would accept it in discharge of his claims? We think, taking all the circumstances, it scarcely admits of the former interpretation. It appears from the testimony itself, that Morrison did not know the state of the partnership accounts, and had not the partnership books to enable him to ascertain it. He also expressed a personal reason for his desire to settle the account, alleging that he was growing old, and was anxious for a settlement. His offer must therefore be deemed to be in the nature

Bell v. Morrison. 1 P.

of a compromise, to pay the sum if the plaintiff would give a complete discharge of his claims; or, to use his own words, "and close the business." It may therefore be fairly deemed a conditional offer to pay a conjectural, not a known balance; to buy peace, and not to acknowledge an absolute debt. If this be, as we think it is, a conditional offer, then, upon the clear text of the Kentucky, as well as the English, and of other American decisions, the case would not be taken out of the statute, unless the plaintiff had performed the condition.

But, if this view of the case should be more doubtful than it seems to us to be, it still remains to consider whether the acknowledgment of one partner, after the dissolution of the copartnership, is sufficient to take the case out of the statute as to all the partners. How far it may bind the partner making the acknowledgment to pay the debt, need not be inquired into; to maintain the present action, it must be binding upon all.

In the case of Bland v. Haselrig, 2 Vent. 151, where the action was against four, upon a joint promise, and the plea of the statute of limitations was put in, and the jury found that one of the defendants did promise within six years, and that the others did not; three judges, against Ventris, J., held that the plaintiff could not have judgment against the defendant who had made the promise. This case has been explained upon the ground that the verdict did not conform to the pleadings, and establish a joint promise. It is very doubtful, upon a critical examination of the report, whether the opinion of the court, or of any of the judges, proceeded solely upon such a ground.

In Whitcomb v. Whiting, 2 Doug. 652, decided in 1781, in an action on a joint and several note brought against one of the makers, it was held that proof of payment, by one of the others, of interest on the note and of part of the principal, within six years, took the case out of the statute, as against the defendant who was sued. Lord Mansfield said: "Payment by one is payment for all, the one acting virtually for all the rest; and in the same manner an admission by one is an admission by all, and the law raises the promise to pay, when the debt is admitted to be due." This is the whole reasoning *reported in the case, and is certainly not [*368 ] very satisfactory. It assumes that one party who has author

ity to discharge, has, necessarily, also authority to charge the others; that a virtual agency exists in each joint debtor to pay for the whole; and that a virtual agency exists, by analogy, to charge the whole. Now this very position constitutes the matter in controversy. It is true that a payment by one does enure for the benefit of the whole;