This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The statute of limitations does not operate as a discharge of the debt, but as a bar to any action thereon. The original debt, while not enforceable in a direct action, has still some effect in law. Thus it is a consideration sufficient to support a promise based thereon, either to pay such debt,1 or to do some other thing in discharge of such liability. Accordingly, a promise made after the period of limitations has elapsed, will create a legal and enforceable liability on the part of the promisor.2 The original statutes made no reference to the effect of a promise to pay a debt which had once been barred by statute. The doctrine upon this point was therefore one evolved by the courts, and is an example of judicial legislation. Such statutes as have been passed upon the subject are generally statutes designed to restrict or modify the Common Law rule which the courts had been applying to such cases. A promise to pay a debt barred by limitations revives a mortgage given to secure it,3 even as against intervening lien creditors.4 There is a divergence of authority as to whether such liability is a revivor of the former liability, or a new liability created by express agreement, the original liability serving merely as a consideration therefor. Some authorities hold that the cause of action is on the new contract.5 Other courts hold that the cause of action is on the original liability, the new promise being used merely to prevent the bar of limitations from being interposed.6 By other authorities a more rational and less pedantic view is taken, namely that if the facts are properly on the record, the plaintiff may take either theory of his case.7 The question might be dismissed as an academic discussion as to the best way of stating a proposition as to the real nature of which there was no question if it were not for the fact that important legal consequences follow the choice by the plaintiff of one or' the other theories of his case. Thus if the canse of action is on the new promise, it must have been made before the action is brought,8 and in states which take this view of the law plaintiff cannot recover as against the plea of the statute of limitations if he has alleged the original contract for his cause of action.9 Like other promises, a promise which revives a debt barred by limitations may be express or implied. The doctrine of implied contract, whereby a barred debt is revived, is complicated with another question, which is a survival of the original dispute with reference to the force and effect of the statute of limitations. The statute of limitations was at one time looked upon as a statute of presumption. When such view obtained any acknowledgment which would rebut the presumption of payment would revive a debt which would otherwise be barred by the statute of limitations. As we have seen, however, the present theory of the statute of limitations is that it is a statute of repose, and not a statute of presumption. The reason therefore which underlies many of the earlier decisions that certain forms of acknowledgment were sufficient, has entirely disappeared. The difficulty found in modern cases on this point arises out of the willingness of some courts to follow the earlier precedents, although the reason for such holdings has ceased, while other courts decline to follow such precedents. A promise to pay a debt made before limitations has run against it waives so much of the period of limitations as has already elapsed and creates a new point of time from which limitations runs afresh.10 While recognized as an established rule this doctrine has been criticised.11 A promise before limitations has run does not create a new obligation,12 and is not subject to the rules which control a promise made after limitations has run.13 Such a positive and unqualified acknowledgment as is necessary if the promise is made after limitations has run is not necessary if the promise is made before limitations has run.1*
S. W. 707; Howard v. Windom, 86 Tex. 560; 26 S. W. 483; Boyd v. Fire Association, 116 Wis. 155; 96 Am. St. Rep. 948; 61 L. It. A. 918; 90 N. W. 1086; 94 N. W. 171.
33 Phoenix Lumber Co. v. Water Co., 94 Tex. 456; 61 S. W. 707.
34 Hamilton v. Thurston, 94 Md. 253; 51 Atl. 42.
35 Campbell v. Campbell, 133 Cal. 33; 65 Pae. 134.
36 Howard v. Windom, 86 Tex. 560; 26 S. W. 483.
1 Koons v. Vauconsant, 129 Mich, 260; 95 Am. St. Rep. 438; 88 X. W. 630; Perkins v. Cheney, 114 Mich. 567; 68 .Am. St. Rep. 495; 72 N. W. 595; Lang v. Gage, 66 N. H. 624; 32 Atl. 155; Richard's Estate, 185 Pa. St. 155; 39 Atl. 1117; Suber v. Richa,«is, 61 S. C 393; 39 S. E. 540.
2 Maize v. Bradley (Ky.), 64 S. W. 655; Hollandsworth v. Squires (Tenn. Ch. App.), 56 S. W. 1044.
3 Robinson v. Basso's Administrator, 100 Va. 190; 40 S. E. 660.
4.Robinson v. Basso's Administrator, 100 Va. 190; 40 S. E. 660.
5 McCormick v. Brown, 36 Cal. 180; 95 Am. St. Rep. 170; Chabot v. Tucker, 39 Cal. 434; Biddell v. Brizzolara, 56 Cal. 374; Rodgers v. Byers, 127 Cal. 528; 60 Pac. 42; Little v. Blunt, 9 Pick. (Mass.) 488; Hill v. Henry, 17 Ohio 9; Martin v. Jennings, 52 S. C. 371; 29 S. E. 807; Fleming v. Fleming, 33 S. C. 505; 26 Am. St. Rep. 694; 12 S. E. 257; Walters v. Kraft, 23 S. C. 578; 55 Am. Rep. 44; Smith v. Caldwell, 15 Rich. L. (S. C.) 365; McKelvey v. Tate, 3 Rich. Law (S. C.) 339; Interstate, etc., Association v. Goforth, 94 Tex. 259;
59 S. W. 871; Howard v. Windom, 86 Tex. 560; 26 S. W. 483; Womack v. Womack, 8 Tex. 397; 58 Am. Dec. 119; Ireland v. Mackintosh, 22 Utah 296; 61 Pac. 901; Walker v. Henry, 36 W. Va. 100; 14 S. E. 440. One of the conclusions reached by the court as settled law was " That where the statutory period, counting from the original accrual of the cause of action, expired before commencement of the suit, a promise shown for the purpose of opposing the plea of the statute is itself the true cause of action, and this, whether such-promise was made before or after the expiration of the period just mentioned." Smith v. Caldwell, 15 Rich. (S. C.) 365, 373; quoted in Fleming v. Fleming, 33 S. C. 505, 509; 26 Am. St. Rep. 694; 12 S. E. 257.
6 Vinson v. Palmer, - Fla. -; 34 So. 276; Keener v. Crull, 19 111. 189; Fiske v. Needham, 11 Mass. 452; Esselstyn v. Weeks, 12 N. Y. 635; Coffin v. Secor, 40 O. S. 637; 48 Am. Rep. 689.
7 Lonsdale v. Brown, 4 Wash. (U. S. C. C.) 86; Polk v. Butterfield, 9 Colo. 325; 12 Pae. 216; Haymaker v. Haymaker, 4 0. S. 272, where the court says "The better practice in such case would he to make the issue of the subsequent promise by replication."
8 Martin v. Jennings, 52 S. C. 371; 29 S. K 807.
9 Hill v. Henry, 17 Ohio 9.