POOL'S EXECUTOR vs. RELFE et al., 23 Ala. 701

PHELAN, J. The case made by the bill is admitted in effect by the answer, and the defence is rested upon the statute of limitations. To this defence the complainant replies a subsequent promise, -and relies upon the contents of a letter written by the defendant, Montgomery S. Relíe. This narrows the whole controversy down to a question as to the true import and construction of the terms of this letter. We do not understand the appellant to controvert the correctness of the rule now generally adopted, and which this court has laid down in the recent cases of Townes & Nooe v. Fergusson, 20 Ala. 147, and Ross v.

Ross, ib. 106, that an admission to remove the bar of the statute of limitations, where the bar is complete, must not only extend to the correctness of the original debt, but also to a present willingness or liability to pay it; but he insists, that the letter of the appellee properly construed amounts to this. Let us then come to the consideration of this letter. We may observe at the outset, that it was written after this bill was filed, and while the suit was in progress.

In this letter Relfo says to the complainant, speaking of an offer he had made through the attorney of the latter : 111 offered to pay ycu the money that your father’s estate had to pay for my brother William, without interest, for this reason : that my brother’s estate was insolvent — neither my brother nor myself received one dollar from it, &c. Therefore, I thought it would be equitable for us to divide the loss.” * * “I have consulted able attorneys about the matter, and it is against their advice that I offer to make the compromise.

They say that it is uncertain whether I am bound for the debt or not, but I do not want you to lose anything by my brother’s estate; therefore I make you the offer of $328, that you actually paid out. If you will compromise, I will pay you $328 on the first day of January next, bearing interest from the time that your attorney informed me that he had the business in band.

I hope that you will accede to my proposition.” To this letter he adds a postscript, saying: “ I would not have insisted on your losing the interest, had not my brother’s estate been insolventrepeats that his attorneys had advised him not to compromise, “ but for reasons already stated I propose to do so. I hope you will accede to my proposition.”— * * “ Your terms of settlement we cannot accept.

If I had any of my brother’s property in hand, and was not already a loser by the estate, I would not expect you to lose the interest.” It is argued, that here is a distinct admission that the sum of $328 was paid by Pool for Relfe’s intestate, and that, although this was accompanied Avith a proposition to compromise, this cannot prevent it from being held to be an admission of the truth of that fact, as the statement of it as a fact Avas in no wise essential to the proposition to compromise ; that it Avas gratuitously made, and ought to be receiA’ed as proof of the admitted fact, whether the proposal to compromise be accepted or.not.

Concede this to be so, and Avhat does it amount to 1 It simply amounts to an admission on the part of Relfe that Pool did pay for his intestate the $328, as charged in the bill, many years ago. But this is no more than an admission of the correctness of the original debt or demand, and this Avill not suffice to remove the bar of the statute. One thiug more is necessary, and that is the admission of a willingness, or of an existing liability to pay that debt, and such an idea, instead of finding support in the terms of that letter, is plainly excluded and repelled by them.

The letter, in few words, amounts to this : t£ I admit that you paid for my brother the $828, as you allege in your bill, many years ago, in North Carolina. It is not equitable that you should lose both debt and interest.

I will divide the loss with you, and if you will loso the interest, I will pay the principal; and I make this offer expressly by way of compromise, for my attorneys have advised me that I can probably defeat your suit altogether.” If such a proposal as this can be construed to amount to the admission of the debt of $828 as an existing debt, or of a willingness to pay that sum as a debt carrying of course as such the interest which had accrued upon it from the time when it ■was first due, then it would be difficult to frame a proposal for a compromise, admitting the original justness of plaintiff’s demand at all, which would not involve also such an admission as would remove tho bar of the statute.

But it will not bear any such construction. An offer to pay $828, in full satisfaction of that sum and 9 or 10 years interest upon it, is a very different thing from an admission that the debt and interest are both due, and that the party is willing to pay both. The offer is a plain and distinct one; and any construction that would carry its effect be-3rond what is plainly intended, would work injustice, and greatly discourage offers of compromise. The offer was to pay the $828 in full satisfaction of the claim.

This the appellant thought proper to decline, and pursue his supposed rights by due course of law, and he must take the consequence. Nor is there any ground furnished by this letter upon which to argue that the offer to pay isa conditional one, which becomes binding when it is shown that the respondent had received property from his brother’s estate. The statement that he had received none may be shown to bo false, and yet not alter the nature of his proposal. Ho makes that the pretence or reason why he does not offer more.

But the extent and nature of the offer, and not his pretence or reason for making it, must govern the extent and nature of his liability. The Chancellor very properly decided that the replication of a subsequent promise to the plea of the statute of limitations, was not supported by this letter, and dismissed the bill. The decree below is affirmed.