Sec. 1679. Doctrine Of Acknowledgment
Description
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.
Sec. 1679. Doctrine Of Acknowledgment
When the statute of limitations was treated as a rule of presumption merely, any form of acknowledgment which conceded the fact that the claim was unpaid, was sufficient to rebut the presumption of payment.1 Now that the statute of limitations is treated as one of repose, the general rule is that an acknowledgment of a debt barred by the statute waives the bar of the statute only when the acknowledgment is in such form as to amount to an implied promise to discharge the debt.2 v. Cochran, 130 Cal. 245; 62 Pac. 466, 600; Boynton v. Spafford, 162 111. 113; 53 Am. St. Rep. 274; 44 N. E. 379; affirming, 61 111. App. 384; Drake v. Stuart, 87 la. 341; 54 N. W. 223; Koons v. Vaucon-sant, 129 Mich. 260; 95 Am. St. Rep. 438; 88 N. W. 630; Muse v. Donelson, 2 Humph. (Tenn.) 166; 36 Am. Dec. 309. Contra, that a new promise by one joint debtor waives the bar as to all. Bound v. Lathrop, 4 Conn. 336: 10 Am. Dec. 147; Casebolt v. Ackerman, 46 N. J. L. 169; Hollister v. York. 59 Vt. 1; 9 Atl. 2.
3 Neosho Valley Investment Co. v. Huston. 61 Kan. 859; 59 Pac. 643.
4 Cape Girardeau County v. Harbison, 58 Mo. 90; In re Claghorn's Estate, 1S1 Pa. St. 600; 59 Am. St. Rep. 680; 37 All. 918; Fritz v. Thomas. 1 Whart. (Pa.) 66; 29 Am. Dec. 39; Moore v. Hillebrant, 1-1 Tex. 312; 65 Am. Dec. 118.
5 In re Claghorn's Estate, 181 Pa. St. 608; 37 Atl. 921; Kittera's Es tate, 17 Pa. St. 416.
6 Browning v. Paris, 5 M. & W 117; Pollard v. Scears, 28 Ala. 484j 65 Am. Dec. 364; Northcut v. Wil kinson. 12 B. Mon. (Ky.) 408; Era. erson v. Thompson. 16 Mass. 429.
1 Dowthwaite v. Tibbut. 5 M. & S. 75: Austin v. Bostwick, 9 Conn. 496; 25 Am. Dec. 42; Cobham v. Administrators. 2 Hayw. (N. C.) 6; 2 Am. Dec. 612.
2 Fort Scott v. Hickman, 112 U.
" Loose and general expressions with respect to the acknowledgment of a debt barred by the statute which are merely casual are insufficient to remove the bar."3 In order to amount to an implied promise to pay, the acknowledgment must recognize the debt as a present existing liability.4 Nothing short of this will amount by implication to a promise to discharge the debt.5
Continue to:
My Books
