Magee's Admr. v. T. J. C. Wright

7 Del. 42

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

By the Court.

With the view which we take of the case, it is unnecessary to express any opinion on this motion, upon any other question raised in support of it, than that which relates to the bar of the statute of limitations, and the acknowledgments relied on by the plaintiff to remove it. It is also unnecessary for us to decide whether the acknowledgment of a debt barred by the statute, by a member of a firm after its dissolution, will revive it against all the partners, because by the terms of our statute and the tenor of the decisions upon it, nothing short of an unqualified acknowledgment of the debt as a subsisting demand at the time it is made, is sufficient to revive it and to take it out of the operation of the statute of limitations. Such being the well settled rule in this State on the subject, the declaration of Charles Wright, one of the members of the late firm, that they would not plead the statute of limitations, but at the same time declaring in express terms, that they did not owe the debt, cannot possibly be construed into such an acknowledgment of a subsisting demand, or that the debt was then due and owing from the late firm of T. J. & C. Wright to Magee’s administrator, as would bring it within the rule just stated, and take the case out of the operation of the statute. Indeed, such a declaration is no acknowledgment at all, but on the contrary, it is a flat and explicit denial of the alleged indebtedness, or demand set up by the adverse party; and even a declaration simply on the part of the defendant that he will not plead the statute of limitations to the demand of the plaintiff, if there be nothing more in the case, cannot be held to be an acknowledgment of it, or such an admission of it as a still subsisting and valid debt, as will take it out of the operation of the statute of limitations.

As to the written statement furnished the plaintiff, after the lapse of more than twenty years, from the time the agreement was signed on which the action is founded, in the year 1857, by Jacob Wright another member of the late -firm, there are two objections which apply to it; in the first place, it is not express and positive, but vague and uncertain in terms, and by no means satisfactorily solves the question which was to be decided by him, and which his fellow partners agreed to leave to his decision, which was whether the charge in question against Magee was erroneous or not; for he begins by saying in positive terms that he does not know on what authority the charge in their books was made, whilst all the rest is based, as he admits, on mere surmise, supposition or conjecture, and amounts indeed, to no direct and positive decision of the matter: and in the next place it came too late to answer the purpose of the plaintiff, even had it been more explicit, or entirely conclusive in its terms as to the matter to be submitted to him. Every agreement when no time is expressly fixed, is by intendment of law, to be performed within a reasonable time. But more than twenty years, enough to interpose a presumptive bar to an action on a judgment of record, or on an instrument under seal, had expired before this decision, such as it is, was obtained from him. This was unquestionably out of all reasonable time, delay or indulgence for such a purpose. Judgment of nonsuit must consequently be entered.