
    Ayres v. Bane.
    1. Evidence: letter written on Sunday. An admission that a debt is unpaid, contained in, a letter written on Sunday, is sufficient to remove the bar of the statute of limitations, and the letter is admissible for that purpose.
    2. Practice in the Supreme Court: objection to evidence. An objection to the admission of evidence, not made in the court below, will not be entertained in the Supreme Court.
    3. Practice: questions of law and of fact. Where a cause is tried by the court, without a jury, it is for the court to determine whether a given question be one of law or fact; but a decision, correct hi its conclusions, will not be disturbed because the one is confounded with the other.
    
      Appeal from Marion Circuit Court.
    
    Wednesday, October 7.
    Action upon a promissory note; defense, the suit is barred, by the statute of limitations. The cause was submitted; to the court without a jury. Judgment for plaintiff. Defendant appeals. The action was originally brought in the name of Oollins, Adm’r, and has before been in this court. See 34 Iowa, 386. After it was remanded, the former administrator having been discharged, the present plaintiff was substituted.
    
      Anderson (& Collins, for appellants
    
      Stone c& Ayres, for appellee.
   Beck, J.

Certain letters were admitted in evidence to support the allegations of the petition, to the effect that defendant had admitted the debts were unpaid. There were three of these letters, and objection is made to each upon different grounds.

I. The first, it was shown, was written on Sunday. It is insisted that the law which declares contracts made on Sunday invalid, is applicable to the letter in question, and it is therefore of no effect and ought not to have been received in evidence. The principle of law upon which counsel base tbeir argument cannot be disputed, but it is not-applicable to the .case made by the pleadings and evidence. The petition avoids the statute of limitation by an allegation of an admission that the debt was unpaid, made by defendant prior to the commencement of this suit, and within the time limited by the statute. Under this pleading, the letter was, introduced to show an admission, and not a new promise. The admission is not to be regarded like a new promise or a contract, but simply evidence of non-payment of the debt. Now, while contracts made on Sunday are invalid, ac's which amount simply to evidence of the existence of contract, and'have the effect in that way to establish the right to recover, are not to be excluded simply,because they are done on Sunday. Thomas v. Hunter, 29 Md., 406.

The bar of the statute may be removed by evidence of the written admission of the debt, as well as a new promise to pay it; both are not necessary. Code, § 2539, Rev. §2751. Penley v. Waterhouse, 3 Iowa, 419.

If it- be conceded that the admission does not revive the original contract, but thereon the law implies a promise to pay, it, nevertheless, is not to be regarded as a contract; it is an act upon which a contract is implied by law, and does not itself amount to a contract. It is not, therefore, on the ground of its being a contract, of no effect because made on Sunday. The admission, if not forbidden to be made on Sunday, or was not made in connection with other acts forbidden on that day, cannot be unlawful. If not unlawful there can be no reason why it should not have' the same effect as if done upon another day. We know no reason why the writing of a letter to a friend or relative, oh Sunday, containing an admission of an indebtedness, should be regarded as a violation of law. We conclude the letter was correctly admitted in evidence.

II. Another letter introduced in evidence is now objected to 011 ^ie gro™d that it is without date. It is a sufficient answer to this objection to state that it was not ma¿e in the court below; it will not be heard in this court.

III. A third letter dated after the suit was commenced is, for that and other reasons, claimed to have been improperly received in evidence. We need not determine the question as to the admissibility of this letter, for, in our opinion, the finding of the court, to the effect that defendant had admitted the indebtedness, is sufficiently supported by the other letters, and a finding the other way upon them would have been so against the evidence, as to require a reversal of a judgment based thereon. Under this view of the evidence the admission of this last letter was error without prejudice, conceding it to have been erroneously admitted in evidence, which, however, we do not decide.

IV. The counsel of appellant discuss, at some length, the question, whether the acknowledgment of the debt is sufficieflUy shown by the letters, is a matter of law or We ^ unnecessary to pursue the , inqniry. Whichever it be, we think the court’s conclusion that the acknowledgment was established is correct.' The cause having been submitted for trial without a jury, .the question was for the decision of the court, whether it was one of law or fact; and, as it was decided rightly, even though it may have been considered as one when it was really the other, there can be no error therein that is prejudicial to the defendant.

■ The foregoing discussion disposes of all the questions necessary to be considered, in order to dispose of the case.

The judgment of the District Court is

Al-NIRMEDi  