Will v. Marker

98 N.W. 487, 122 Iowa 627

• Court: Supreme Court of Iowa
• Decided: February 6, 1904
• Status: Published

Opinion

ShbbwiN, J.

To avoid tbe bar of tbe statute of limitations, tbe plaintiff pleaded certain letters, wbicb were alleged to bave been written by tbe defendant concerning tbe note in suit. Tbe demurrer, of course, admitted the truth of all matters well pleaded. TJnder our statute causes of action founded on contract are revived by an admission in writing, signed by tbe party to be charged, that tbe debt is unpaid. It is not necessary, however, that this admission be an express one; it is enough if tbe writing clearly and unequivocally refers to tbe instrument in suit, and clearly admits that it is not paid. In this case several letters, written b¡y tbe defendant, regarding tbe note in suit, are set out, and we cannot do more than give excerpts therefrom. In one of tbe letters be wrote that he bad supposed tbe note paid by bis brother, and asks tbe plaintiff to reduce tbe amount of interest thereon as much as possible, and to do tbe best be can for him. In another be wrote that be could borrow $100, and asked tbe píaintiff to accept that sum in full, and stated, “I want to get it off my hands now.” In a letter written to tbe attorney who bad tbe note for collection he said that be could not pay the note, and that, if a judgment would satisfy tbe attorney, he could take it; but be asked that be.be spared tbe humiliation of being sued.’ Considering tbe letters as a whole, they clearly admit that tbe note was unpaid. Campbell v. Campbell, 118 Iowa, 131; Jenckes v. Rice, 119 Iowa, 451; McConaughy v. Wilsey, 115 Iowa, 589.

Tbe judgment is eeveesed.