Loomis v. Decker

New York Court of Common Pleas

Loomis v. Decker

1 Daly 186

CourtNew York Court of Common Pleas

DecidedNovember 15, 1861

StatusPublished

Cited by2 cases

This text of 1 Daly 186 (Loomis v. Decker) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Loomis v. Decker, 1 Daly 186 (N.Y. Super. Ct. 1861).

Pincite

Opinion

By the Court.

Hilton, J.

To revive a debt barred by the Statute of Limitations, where there is no express promise to pay shown, hut one is sought to be implied from an acknowledgment of the indebtedness, the acknowledgment should contain an unqualified and direct admission of a previous subsisting debt, for which the party is liable and willing to pay; or, in other words, there should be a clear recognition of the present existence of the demand from which a promise may he implied, and the recognition must be unaccompanied by any circumstance calculated to repel the presumption of an intent or promise to pay. Sands v. Gelston, 15 Johns. 511; Purdy v. Austin, 3 Wend. 189; Bell v. Morrison, 1 Peters, 357; Stafford v. Bryan, 2 Paige, 45 ; Allen v. Webster, 15 Wend. 284; Stafford v. Pickerson, Id,, 302; Bloodgood v. Bruen, 4 Selden, 362 ; Wakeman v. Sherman, 5 Id, 85 ; Mosher v. Hubbard, 13 Johns. 510.

Tested by these rules, the letter of the defendant was suffi[189]*189cienfc to charge him. with the liability sued on. It was, in substance, that he did not recollect when the claim arose, but notwithstanding this, if he had received the powder which formed the subject of the debt, and the bill for it was right, he would make it.satisfactory. To this he adds, that he has certain Rail Road Bonds which he had purchased at 85 cents on the dollar, and hoped they would be accepted in payment, as money was out of the question.

The fair inference from such language, I think, is, that on the indebtedness being shown to have existed, he would make it satisfactory to the plaintiffs by paying it. Heyling v. Hastings, 1 Salk. 29; Stanly v. Champlin, 4 Johns. 461. That he had certain property more than sufficient to pay the claim, but no money, and he therefore hoped that the plaintiffs would be satisfied by taking the property at a rate of value to be adjusted. Brown v. Keach, 24 Conn. 73; Edmonds v. Goater, 9 Eng. Law & Eq. 204; Hooper v. Stevens, 7 Car. & Payne, 261.

There was nothing in this calculated to raise an inference that he intended to avoid the payment- of the claim, provided its correctness was shown, and as its validity was admitted by him at the trial, I think the Justice properly construed the acknowdedgment to be such a one as from which a promise to pay might fairly be inferred, and his finding, in this respect, like the verdict of a Jury, should be regarded as final, under the circumstances showm, and 'ought not to be disturbed. Watkins v. Stevens, 4 Barb. 160.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

By the Court.

Hilton, J.

To revive a debt barred by the Statute of Limitations, where there is no express promise to pay shown, hut one is sought to be implied from an acknowledgment of the indebtedness, the acknowledgment should contain an unqualified and direct admission of a previous subsisting debt, for which the party is liable and willing to pay; or, in other words, there should be a clear recognition of the present existence of the demand from which a promise may he implied, and the recognition must be unaccompanied by any circumstance calculated to repel the presumption of an intent or promise to pay. Sands v. Gelston, 15 Johns. 511; Purdy v. Austin, 3 Wend. 189; Bell v. Morrison, 1 Peters, 357; Stafford v. Bryan, 2 Paige, 45 ; Allen v. Webster, 15 Wend. 284; Stafford v. Pickerson, Id,, 302; Bloodgood v. Bruen, 4 Selden, 362 ; Wakeman v. Sherman, 5 Id, 85 ; Mosher v. Hubbard, 13 Johns. 510.

Tested by these rules, the letter of the defendant was suffi[189]*189cienfc to charge him. with the liability sued on. It was, in substance, that he did not recollect when the claim arose, but notwithstanding this, if he had received the powder which formed the subject of the debt, and the bill for it was right, he would make it.satisfactory. To this he adds, that he has certain Rail Road Bonds which he had purchased at 85 cents on the dollar, and hoped they would be accepted in payment, as money was out of the question.

The fair inference from such language, I think, is, that on the indebtedness being shown to have existed, he would make it satisfactory to the plaintiffs by paying it. Heyling v. Hastings, 1 Salk. 29; Stanly v. Champlin, 4 Johns. 461. That he had certain property more than sufficient to pay the claim, but no money, and he therefore hoped that the plaintiffs would be satisfied by taking the property at a rate of value to be adjusted. Brown v. Keach, 24 Conn. 73; Edmonds v. Goater, 9 Eng. Law & Eq. 204; Hooper v. Stevens, 7 Car. & Payne, 261.

There was nothing in this calculated to raise an inference that he intended to avoid the payment- of the claim, provided its correctness was shown, and as its validity was admitted by him at the trial, I think the Justice properly construed the acknowdedgment to be such a one as from which a promise to pay might fairly be inferred, and his finding, in this respect, like the verdict of a Jury, should be regarded as final, under the circumstances showm, and 'ought not to be disturbed. Watkins v. Stevens, 4 Barb. 160.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

1 Daly 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loomis-v-decker-nyctcompl-1861.

Opinion

Related

Cite This Page — Counsel Stack