Hicks v. Thomas

1 Dudley Rep. 218

• Court: Richmond Superior Court, Ga.
• Decided: July 1, 1831
• Status: Published

Opinion

an action of assumpsit, there being in the declara-^jon ^ree counts, for money paid, laid out and expended, / ,*'4 ¶ , money had and received, and on an account stated ; the prom¡geg arK[ liabilities in each count allege to have been made and incurred on the 1st October, 1826. The defendant has plead and relied on the statute of limitations, This is a

By a consent between the parties a verdict has subject to the opinion of the court on the plea “ it being admitted that the defendant within four years, offered the plaintiff fifty cents in the dollar for his claim.” There was no before the court, and from the pleadings it is plain that the debt is not barred. But with the papers submitted *s ^ letter from defendant to plaintiffs, dated 25th Nov. 1820, admitting a balance due from him of $335,37 ; which letter, ft Is supposed, was to be referred to by the court in making . rr. . J Up its Opinion.

From the papers submitted, it appears that Beach &, Thomas previous to the year 1820 were indebted to the plain-Bffg — that in that year, and after the death of Beach the de-admitted, in the letter referred to, the balance above gtated to be due to the plaintiff’s from the late firm oi Beach & 1 homas, and at the same time informed the plaintiffs ot the embarrassment and probable insolvency of that firm, and that in 1825 the defendant offered to the plaintiffs to pay them one half of the claim.

This letter is clearly a liquidation of the debt made by the defendant after the death of his partner, by which, and by reason ot his having survived his copartner, the debt was payable by him individually. In 1825, this debt was not barred as by the act of 1809, all actions founded on notes and other acknowlcgments under the hand of the party, are not barred, until the expiration of six years. At the time, therefore, when the offer to pay one half was made, there was a subsisting legal demand. This demand is expressly admitted by the defendant, which admission is accompanied by a promise to pay one half. The only way by which the defendant can avoid the consequences of this acknowledgment and promise, if they can be avoided at all, is to suppose them made in an offer or an attempt to compromise. For the acknowledgment of the debt is very express, and the promise to pay one half is equally as express ; made at the time too, when there was a subsisting debt clearly not barred. It is well settled that no advantage shall be taken of an admission made to secure one’s peace, and if such were (he character of this acknowledgment and promise, the evidence would be rejected. If, however, the offer or admission be not made with a view of avoiding a suit, or to buy one’s peace against a doubtful claim, but from a consciousness of the truth of the fact admitted, it will not fall within the rule. In this view it is of importance to look to the motive which led to the admission. What -were the motives of the defendant in this case, are to be gathered from the letter. The defendant was the surviving partner of the late firm of Beach &. Thomas, which firm was probably insolvent. His partner being dead, the whole liability survived to him and the debts of the firm were to be met by his unaided future efforts. Is it not therefore fairly to be presumed, that the admission was made rather with a view to the affairs of the defendant, and his ability to meet the whole claim, than to its justness, particularly as no dispute had arisen as to the legality of the debt or the sufficiency of the proof of it, and as it was not then barred by the statute ? I think it is, and that the offer cannot be considered an offer of compromise so as to deprive the plaintiffs of the benefit of it in replying to the plea of the statute of limitations.

On the subject of interest, which is also referred to, the decision of the court no doubt is entertained. This is clearly a liquidated demand within the letter and spirit of the act of 1799.

Let judgment be entered for principal and interest, with leave to defendant to appeal within four days from the adjournment of court.