
    Ellis N. Crow, Resp’t, v. Patrick J. Gleason, App’lt. 
    
    
      (Court of Appeals,
    
    
      Filed March 6, 1894.)
    
    Limitation—Part Payment.
    In order to make a money payment a part payment within the statute of limitations, it must be made under such circumstances as to show a recognition of a larger debt remaining unpaid.
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order, made October 20, 1892, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
    The nature of the facts, so far as material, are stated in the opinion.
    
      Jesse Johnson for app’lt; Edwin B. Leavitt for resp’t
    
      
       Reversing 48 St. Rep., 912.
    
   Earl, J.

This action was brought to recover for the use of horses let bv the plaintiff to the defendant during all the years from the 26th day of April, 1875, to some time in November, 1885. The plaintiff claims in his complaint that the whole sum for the hire of his horses was upwards of $12,000, upon which the defendant had paid him upwards of $10,000, leaving a balance due him of about $2,000. The defendant in his answer denied that he had had the use of plaintiff’s horses to the amount claimed by him ; denied that there was anything due the plaintiff, and alleged that he had paid' him in full. He also set up the Statute of Limitations. The action was commenced on the 28th day of April, 1890.

We will assume that the plaintiff’s account for the use of his horses was sufficiently proved. But we are of opinion that upon the undisputed evidence all of the account prior to the 28th day of April, 1884, was barred by the Statute of Limitations.

The referee found that the last item of debit in the account was for horses furnished on the 4th day of November, 1885 and he found the last payment made by defendant to plaintiff on account of the horse hire was $7.00 paid November 13th, 1885, which was duly credited on the account and that that sum was a payment upon the balance of the entire account. He further found that each and every payment made by the defendant to the plaintiff on account of the horses hired to the defendant was applied by the plaintiff upon the entire balance due therefor on the date of such payment, and was credited generally by the plaintiff upon the account; that the defendant never made any application nor requested plaintiff to make any application of any of the payments upon account of any particular portion of the horse hire, nor upon any particular portion of the indebtedness; and he found that no part of plaintiff’s claim was barred by the Statute of Limitations.

The contention of the plaintiff is that the whole account is saved from the bar of the Statute of Limitations by part payments, and in that way only.

In order to make a money payment a part payment within the statute, the burden is upon the creditor to snow that it was a payment of a portion of the admitted debt, and that it was paid to and accepted by him as such, accompanied by circumstances-amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which promise may be inferred to pay the remainder. Part payment of a debt is not of itself conclusive to take the case out of the statute. In order to have that-effect it must not only appear that the payment was made on account of a debt, but also no account of the debt for which action is brought, and that the payment was made as a part of a larger indebtedness, and under such circumstances as warrant a jury in finding an implied promise to pay the balance. If it be doubtful whether the payment was a part payment of an existing debt, more being admitted to be due, or whether the payment was intend ed by the party to satisfy the whole of the demand against him, the-payment cannot operate as an admission of a debt so as to extend the period of limitation. If there be' a mere naked payment of money without anything to show on what account, or for what reason the money was paid, the payment will be of no avail under the statute. The payment must, be made under such circum-stances as to show a recognition of a larger debt remaining unpaid. These rules, in varying phraseology, are laid down and illustrated in many authorities. Abbott’s Trial Ev. 824; 1 Wood on Limitations, 271, et seq.; Harper v. Fairley, 53 N. Y. 442; Albro v. Figuera, 60 id. 630; Smith v. Ryan, 66 id. 352.

How what have we here ? There is no proof whatever of the oircumstances under which the $7.00 was paid on the 13th of Hov., 1885. There was no proof even aside from the plaintiff’s ledger in which it was credited that it was ever paid. The finding of the referee that the plaintiff credited all of the numerous payments made by the defendant during all the years upon the account generally is of no moment. The question is not how he applied the payments, but how -the debtor intended they should be applied and understood they were applied. And if it be true that the defendant never made any particular direction as to how the payments should be applied, that is not sufficient to save the bar of the statute, unless the plaintiff can show that they were made by the defendant consciously to apply upon the whole account, and in recognition of the whole account.

How. what are the facts here bearing upon these payments? The plaintiff himself testified that he never presented a statement of the account to the defendant. So far as the evidence discloses he never mentioned the general account to the defendant and asked of him any payment thereon, and it does not appear that he ever brought the general account to the mind of the defendant at the time, of, any payment. On the contrary, every bill presented to the defendant, from the middle of April, 1884, to the end of the account, was generally for horses let to the defendant during the previous month. So far as the evidence discloses every bill presented to the defendant for payment was a bill for a specified time npon, which the defendant made his payment. There is no satisfactory evidence in this case that the defendant knew or believed that he owed the plaintiff any account which antedated the middle of April, 1884. If we assume that the defendant had all the horses charged to him on the plaintiff’s ledger from April 1st, 1884, to November 15th, 1885, and that he made all the payments credited to him in that ledger, we then have the fact that all the payments were less by more than one hundred dollars than the amount he owed for horses hired during the same period. -So that there were no payments within the six years prior to the commencement of the action which are necessarily to be applied upon the whole account existing prior to that time. So far as we can discover, therefore, in this evidence, there is no warrant whatever for finding that the defendant made or intended to make any payment during the six years prior to the commencement of this action to apply upon any account for horse hire existing at an earlier date.

We are not satisfied with the conclusion reached by the referee. The case should go back for a new trial, when, if possible, the plaintiff may make such proof as will, within the rules of law above stated, save the whole of his account from the bar of the Statute of Limitations. Upon the record as it now appears he has failed to do that, and the judgment must be reversed, and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.  