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 mere acknowledgment of the existence of the debt which does not treat it as a present subsisting liability is insufficient.1 It is not sufficient that the reference to the debt should be consistent with its validity.2 To amount to an acknowledgment the reference must unequivocally show that the debt is treated as valid and subsisting. Thus publishing the debt in question in an official list of liabilities,3 as in a list of liabilities published by a bank in compliance with the law,4 or in an official statement of a city's indebtedness,5 or in a schedule of debts in bankruptcy or insolvency,6 is not a sufficient acknowledgment. In most of the latter cases, the acknowledgment is also defective as not made to the debtor. So a letter by a guarantor of a debt of a corporation acknowledging the debt as binding on the corporation but not referring to his own contract of guaranty, is not an acknowledgment of his contract.7 In some states an admission in effect that the debtor "owed the debt and that it remained unpaid,"8 even if there is " no expression of willingness to remain bound,"9 is sufficient. Thus an admission that the debt is valid, even if coupled with a statement of present financial inability to pay,10 has been held sufficient.
S. 150; Bell v. Morrison, 1 Pet. (U. S.) 351; Pierce v. Merrill, 128 Cal. 473; 79 Am. St. Rep. 63; 61 Pac. 67; Ensign v. Batterson, 68 Conn. 298; 36 Atl. 51; Ennis v. Palace Car Co., 165 111. 161; 46 N. E. 439; Sehonbachler v. Schonbach-ler (Ky.), 57 S. W. 233; Johnston v. Hussey, 89 Me. 488; 36 Atl. 993; Ritter's Estate, 161 Pa. St. 79; 28 Atl. 1011; Stiles v. Coal Co., 47 W. Va. 838; 35 S. E. 986; Pierce v. Seymour, 52 Wis. 272; 38 Am. Rep. 737; 9 X. W. 71. "An acknowledgment cannot be regarded as an admission of indebtedness where the accompanying circumstances are sucb as to repel that inference or to leave it in doubt whether the party intended to prolong the time of legal limitation." Fort Scott v. Hickman. 112 U. S. 150. 163.
3 Thomas v. Carey, 26 Colo. 485, 490; 58 Pac. 1093.
4 Kelly v. Strouse. 116 Ga. 872; 43 S. E. 280; Shck v. Sexton, 113 Ga. 617; 38 S. E. 946; Olney v.
Jackson, 106 Ind. 286; 4 N. E. 149; Durban v. Knowles, 66 Kan. 397; 71 Pac. 829; Haythorn v. Cooper, 65 Kan. 338; 69 Pac. 333; Ditto v. Ditto, 4 Dana (Ky.) 502; Henry v. Zurflieh, 203 Pa. St. 440; 53 Atl. 243; Thompson v. French, 10 Yerg. (Tenn.) 452.
5 " Statutes of limitation are statutes of repose and not merely statutes of presumption of payment. Therefore to deprive a debtor of the benefit of such a statute by an acknowledgment of indebtedness there must be an acknowledgment to the creditor as to the particular claim and it must be shown to have been intentional." Fort Scott v. Hickman. 112 U. S. 150. 163.
1 Succession of Slaughter. 108 La. 492; 58 L. R. A. 408; 32 So. 379; Prescott v. Vershire, 63 Vt. 517; 22 Atl. 655.
2 Hanson v. Toole. 19 Kan. 273.
3 Fort Scott v. Hickman, 112 U. S. 150.