In a few States the courts have construed local statutes as removing the defence of the statute from any defendant who has acknowledged the debt within the statutory period, though no willingness to pay can fairly be implied. These statutes were perhaps intended merely to reenact the common law as modified by Lord Tenterden's Act in England, but they have been construed as making the admission sufficient of itself and not merely as evidence of a promise. Such States are Iowa,36 Kansas, 37 Nebraska,38 New Mexico,39 and Oklahoma.40 In one of these States the rule has been thus defined: "Anything that will indicate that the party making the acknowledgment admits that he is still liable on the claim, that he is still bound for its satisfaction, and that he is still held for its liquidation and payment, is sufficient to revive the debt or claim; and there is no necessity that there should also be a promise to pay the same, either express or implied." 41 There is less difference than might be expected between the actual results reached under statutes thus construed and those reached under other statutes. The difference is usually merely that under the ordinarily prevailing rule the court says a promise is implied from an unqualified admission while in the jurisdictions in question it is said that the admission itself is sufficient.
31 Supra, Sec. 167.
32See supra, Sec.163.
33 Kelly v. Eby, 141 Pa. 176, 21 Atl. 512; Simrell v. Miller, 169 Pa. 326, 32 Atl. 548.
34 Barnard v. Bartholomew, 22 Pick. 291, 293; Custy v. Donlan, 169 Mass. 245,247,34 N. E. 360,38 Am. St. Rep. 419.
35 Banner v. Berridge, 18 Ch. D. 254; Wooster v.Scorse, 16 Am. 11, 140 Pac.
819; Radigan v. Hughes, 84 Coon. 137, 79 Atl. 50; Freeman v. Walker, 67 111. App. 309; Whiteman v. McFarland, 68 111. App. 295; Hemsley v. Hollings-worth, 119 Md. 431, 87 Atl. 506; King v. Davis, 168 Mass. 133, 46 N. E. 418; Berryman p. Becker, 173 Mo. App. 346, 168 S. W. 899; Savage p. Gaut (Tenn. Ch. App.), 57 S. W. 170; Howard v. Windom, 86 Tex. 560, 26 S. W. 483.
Sec. 168. Acknowledgments qualified by refusal or statement of inability to pay. If the debtor admits his indebtedness but couples the admission with a refusal to pay, no new promise can be implied.42 A statement that the debtor is unable to pay at present does not qualify his admission so far as to prevent the implication of a new promise; 43 and if the statement of present inability is coupled with a promise or even an expression of hope to pay in the future, it is even clearer that the debtor thereby renews his liability.44 It would seem, however, that in any case where the debtor asserted present inability, any promise implied must be rather to pay after a reasonable time or when he becomes able, than to pay immediately.45 A declaration of inability to pay which fairly construed relates not merely to the present, but to the future as well, is equivalent to a refusal to pay, and it is immaterial whether or not the debtor also admits the existence of the debt.46
36 Stewart v. McFarland, 84 Iowa, 65, SO N. W. 221; Nelson v, Hanson, 92 Iowa, 356, 60 N. W. 656, 54 Am. St. Rep. 568; Jenckes v. Rice, 119 Iowa, 451, 93 N. W. 384.
37 Fort Scott v. Hickman, 112 V. S. 150,28 L. Ed. 636, 5 8. Ct. 56; Elder v. Dyer, 26 Kana. 604, 40 Am. Rep. 320; Disney v. Healey, 73 Kana. 326,85 Pac 287. But a letter expresing regret at the debtor's inability to pay was held insufficient. Corbett v. Hose, 98 Kana. 290, 157 Pac. 1196.
38 Devereaux v. Henry, 16 Neb. 65, 19 N. W. 697.
39Cleland v. Hostetter, 13 N. Mex. 43, 79 Pac. 801.
40 Andrew v. Kennedy, 4 Okla. 625, 629, 46 Pac. 485.
41 Elder v. Dyer, 26 Kans. 604, 40 Am. Rep. 320.
42A'Court v. Cross, 3 Bing. 329; Coaio v. Guerra, 67 Fla. 331, 65 So. 5; Gray v. McDowell, 6 Bush, 475; Stewart v. Watte, 15 La. Ann. 135; Porter v. Hill, 4 Me. 41; Bailey v. Crane, 21 Pick. 323; Buckner v. Johnson, 4 Mo. 100; Laurence v. Hopkins, 13 Johns. 288; Lee v. Polk, 4 McCord, 215; Burnett v. Munger, 23 Tex. Civ. App. 278, 56 S. W. 103.
Under the early English rule prevailing in the latter part of the 18th century, such an admission would have been sufficient. See supra, Sec. 161, and in some early American cases the same doctrine is applied. See, e. g., Olcott v. Scales, 3 Vt. 173, 21 Am. Deo. 585.