JOHN L. McCORMICK v. SAMUEL A. BROWN, 36 Cal. 180

By the Court, Rhodes, J. : The plaintiff alleges that in 1852 he recovered a judgment against the defendant in the Circuit Court for the County of La Salle, State of Illinois, for one thousand one hundred and fifty-five dollars and fifty cents; and that, in consideration thereof, the defendant, on the 4th of August, 1863, promised, in writing, to pay the whole of said judgment in gold coin. The action was commenced in June, 1866.

The Court found that the defendant, on the 4th of August, 1863, in writing, acknowledged the debt to be due to the plaintiff, and at the same time and in like manner promised to pay the same to .the plaintiff in gold coin. The question is, whether the evidence sustains the finding. It is provided by

section thirty-one of the Statute of Limitations, that “no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this statute, unless the same be contained in some writing, signed by the party to be charged thereby.” There are two ultimate facts that may be proved in the mode prescribed—a continuing contract, and a new contract. The acknowledgment or promise made while the contract is a subsisting liability establishes a continuing contract; and when made after the bar of the statute, a new contract is created. In this case we have to deal with the latter aspect of the statute. By the seventeenth

section of the statute, an action upon a judgment can only be commenced within five years; and, by the same section, an action upon any contract, obligation, or liability founded upon an instrument in writing, other than a judgment or decree, is limited to four years. It seems now to be well established by the authorities that the statute does not operate to extinguish the debt—does not raise the presumption of payment—but it only bars the remedy, and thus becomes a statute of repose.

This position is clearly sustainable upon principle, for if the debt is extinguished, there is no consideration for the new promise. When the creditor sues, after the statute has run upon the original contract, his cause of action is not the original contract, for his action thereupon is barred, but it is the new promise. There are many authorities the other way, some holding that the new promise takes the case out of the statute, others that it removes the bar of the statute, and others still that it revives the original contract.

But the better opinion is that the action is sustainable only upon the new promise, the original contract, or the moral obligation arising thereupon, binding in foro conscientice, notwithstanding the bar of the statute, being the consideration for the new promise. The thirty-first

section is not an exception to the seventeenth—is not of the nature of a proviso to that section—like the disability clauses; but it provides the manner in which the original contract may be continued, or a new promise made. Within what time must the judgment creditor, relying on the new promise, sue? The answer, we think, would be unanimous that the action must be brought within four years from the making of the new promise.

The authorities upon the point of a new promise are very ably reviewed in Ang. on Lim., page two hundred and eighteen, and following; but the circumstances of this case do not require that we should pursue this question further, for whatever may be its true solution, the creditor cannot recover after the statute has run upon the original contract or obligation without proving the new promise. The promise may be either express or implied.

Section thirty-one provides two modes in which the promise may be proved—the one by producing the promise itself, tho express promise, and the other by the production of tiro acknowledgment from which the promise is implied. The acknowledgment serves no other purpose than that, and there are no other means by which the implied promise may be proved. When the express promise is shown, the acknowledgment, if there be one, has no effect, for the law will not imply a promise in the presence of an express promise covering the same ground.

The acknowledgment referred to in the statute is not such as may be deduced by inference from a promise or an offer to pay a part of the debt, or to pay the whole debt in a particular manner, or at a specified time, or upon specified conditions. The acknowledgment, say the cases, must be a direct, distinct, unqualified, and unconditional admission of the debt which the party is liable'and willing to pay. (Bell v. Morrison, 1 Pet. 351; Sands v. Gelston, 15 John. 511; Jones v. Moore, 5 Binn. 573; Berghaus v. Calhoun, 6 Watts, 219; De Forrest v. Hunt, 8 Conn. 185; Russell v. Copp, 5 N. H. 154; Harrison v.

Handley, 1 Bibb. 443; Bell v. Rowland, 1 Hardin, 301; Aug. on Lim., Sec. 231, and note.) Reliance is placed in this case mainly upon the defendant’s letter of the 4th of August, 1863—the two earlier letters of the defendant amounting only to offers on his part to pay certain sums in satisfaction of his note. That letter does not amount to such an acknowledgment as is contemplated by the statute. It does not contain a direct acknowledgment—an express admission—that the amount of the judgment is due, or that he is willing to pay it.

It may be said that there is that sort of an implied acknowledgment that may be inferred in the case of every offer or promise, that the amount offered to be paid or promised to be paid is or will become due; but it is not the acknowledgment required by the statute, and it is of no avail to the plaintiff, because no promise arises therefrom by implication. It would be illogical to infer from an offer or promise to pay a given sum of money upon the original contract an acknowledgment, to infer a promise more comprehensive than that from which the acknowledgment was implied.

An offer or promise to pay a certain sum, or deliver any

article of value at a specified time, in satisfaction of the original debt upon which the statute has run, cannot, by this inverse implication, be construed as evidence of a promise to pay the whole debt, without a plain perversion of the meaning and intention of the provision of the statute. The plaintiff* claims that the letter proves the alleged new promise, while the defendant contends that it amounts only to an offer to pay certain sums at specified times, or at most, that it is a conditional promise.

If it be an offer, the plaintiff cannot recover without showing an acceptance on his part; and if it be a conditional promise, the plaintiff must show a performance of the condition on his part, by the entry of satisfaction of the judgment recovered in 1852. (Aug. on Lim., Sec. 235.) But for the purposes of this appeal, it is not requisite that we should give construction to the letter in this respect, for if it amounts to a new promise, the promise is to pay three hundred and fifty dollars on demand, three hundred and fifty dollars one year from the first payment, and four hundred dollars two years from that time.

This evidence does not correspond with the allegations of the complaint—of a promise generally to pay the amount of the judgment; nor does it sustain the findings. Judgment reversed, and the case remanded for a new trial.