
    Mitchell v. Clay.
    It Is perfectly well settled that the acknowledgment of a debt, if accompanied with a promiso to pay conditionally, is of no avail unless the condition be complied with or Uie event happen upon which the promise depends. (Note 87.)
    An offer to pay a debt which is barred by the statute of limitations in specific articles isa conditional promise, and will not avail the creditor as an acknowledgment of the justice of the claim unless the offer be accepted within a reasonable time.
    An acknowledgment of indebtedness in general terms will bo held to apply to the particular debt sued on unless the defendant show there was another debt due from him to the plaintiff; subject to fhis qualification, the question of the application of the acknowledgment is for the jury to decide.
    What is a reasonable time must depend upon the places of residence and the relative positions of the parties, their means ot intercommunication, and the other facts and circumstances of the case.
    Error from Havarro. The appellee sued the appellant upon a bill of exchange barred by the statute of limitations, and relied on an acknowledgment in writing made within four years next before the commencement of the suit to take the case out of the operation of the statute.
    The writing containing the acknowledgment relied on was set out in the petition, as follows:
    “ Chambers Creek, 26i/i May, 1845. “To IV. Y. McFarland, Esq. Dear Sir: I purpose letting Mr. Tacitus Clay liave the following-described lands, in payment of a draft I letW. MeCary have on Dr. Thomas Hunt, originally for 82,000 : one-fourth of a league of the headlight of Ann Maria Vaca, lying on Trinity, land and timber first-rate for this country; one-tliird of a league out of the- headlight of ffm. Cole, hind and timber first-rate. The above I propose to lake fifty cents per acre, or leave it to any disinterested person. One-third league on Richland, good laud and timber, price as above. I refer you to B. J. Chambers, of Robertson county, for information respecting- Trinity laud.
    “Yours, respectfully, Thomas J. Smith.”
    '".he portion contained an averment, that the plaintiff had been at all times ready and willing, and offering to accept this proposition agreeably to its terms, !>nt that neither the deceased in his lifetime nor the defendant as his administrator would pay the said debt in money or land, though requested.
    The defendant excepted to the, legal sufficiency of the petition, and pleaded among other matters the statute of' limitations. The exceptions were overruled.
    On the trial Wilson Y. McFarland, a witness for the plaintiff, testified that he was employed by the plaintiff to collect the hill of exchange described in the petition; that he brought suit against the defendant’s intestate, Smith, in tlie Robertson District Court; that lie afterwards received the letter of Smith set out in the petition ; that, at the District Court of Robertson county, thereafter, he saw Smith, and offered to accept the proposition contained in the letter, with which the latter refused them to comply. Another witness al-o test died that he was present at a conversation between the plaintiff and the defendant Smith two or three years before the trial, (which was in September, 3849,} in which the plain (.ill* offered to receive payment of the debt in lands, hut Smith refused his assent.
    The court instructed the jury that, “if they could rationally infer, from the facts stated in the letter declared upon by the plaintiff, that the defendant acknowledged the justness of the plaintilf’s demand, they would find for the plaintiff, provided there were no other facts in the case to induce them to come to a different conclusion ; and if they could not thus rationally infer such acknowledgment, they would find for the defendant.”
    There was a verdict and judgment for the plaintiff.
    
      Gillespie and Sayles, for plaintiff in error.
    . W. 7. McFarland, for defendant in error.
   Wheeler, J.

It is perfectly well settled that the acknowledgment of a debt, if accompanied with a promise to pay conditionally, is of no avail, unless the condition to which the promise is subjected by the defendant is complied with or the event lias happened upon which the promise depends. (Angelí on Lira., 249.)

Where, to a demand of above six years’ standing, the party indebted, on being applied to for payment, admitted he was bound in honor and should pay “ when he was able,” Lord Kenyon ruled this to be a conditional promise, and that the plaintiff was bound to show the sufficient ability of the defendant. (Id., 250-251.)

And where A promised after six years to pay a debt in certain specific articles, it was held that the promise came within tiie principle above stated by Lord Kenyon, and that it being a conditional promise, it must appear that the plaintiff offered to accept the specific articles. (Id., 252; 8 Johns. R., 318.)

The numerous cases which maintain the same principle are too familiar to require particular reference.

Applying this principle to the present case, it seems clear that to enable the plaintiff to maintain his action he must have averred and proved that lie accepted or offered to accept the land proposed to be given in payment.

The instruction given by the court to the jury, however, maintains a different doctrine. It in effect asserts the proposition without qualification that if the letter contained an acknowledgment of the justness of the debt, it was sufficient to take the case out of the operation of the statute. Had the acknowledgment been unconditional, this instruction would have been correct. But having annexed to It the implied condition that the plaintiff should accept the proffered terms, the instruction as applied to the evidence was, it is conceived, erroneous, and calculated to mislead. The jury were naturally led l>y it to conclude that it was immaterial whether the evidence established an acceptance or offer to accept the proposition within a reasonable time or not. and to direct their inquiry to the single question whether the letter contained an acknowledgment of the justice of the debt. Under the charge of the court they donbless conceived themselves authorized to find for tho plaintiff, though not satisfied that there had been any offer in due time to accept the proposition.

Note S7. — Salinas v. Wright, 11 T., 572; Bowlett v. Lane, 43 T., 274. The acknowledgement must show positively that the debt is due oither in whole or part, and must he unqualified. (Smith v. Ply, 21 T., 315; McDonald v. Grey, 29 T., 80)

It was very properly left by the court to the jury to decide whether the acknowledgment contained in tiie letter had reference to tiie debt sought to be recovered on the strength of it. The defendant not having shown that there was any other debt due from him to the plaintiff, his acknowledgment was to he taken to apply to the one in suit. (Angell on Lim., 256; Coles v. Kelsey, 2 Tex. R.) Subject to this qualification, tiie question of the application intended by the writer of the letter was for the jury to decide. (Aug. Him., 255.) But it was for tiie court to determine whether the letter contained such an acknowledgment as was sufficient to take tiie case out of the operation of ihc statute. The construction of the writing was with the court. The error in tiie instruction was that it treated the acknowledgment as unconditional. Tho essential inquiry was whether there had been an'acceptance or offer to accept the proposition'williin a reasonable time. That question was left out of view, or, iu effect, withdrawn from tiie consideration of the jury by the instruction.

What was a reasonable time must depend upon the places of residence and the relative positions of the parties, their means of intercommunication, and tiie other facts and circumstances of tho case. These are so imperfectly presented by the record before us that we deem it proper to abstain from tiie expression of an opinion which might lie inapplicable to the evidence upon another trial.

We are of opinion that the court erred in the instructions to the jury, and that tiie judgment, therefore, he reversed and the cause remanded for a new trial.

Reversed and remanded.  