
    Cudd v. Jones.
    
      (Supreme Court, General Term, Fourth Department.
    
    February, 1892.)
    1. Appeal—Objections Not Raised Below—Evidence of Compromise.
    The objection that evidence admitted at the trial of an action was in the nature of an offer to compromise cannot be raised for the first time on the appeal.
    8. Limitation of Actions—Acknowledgment of Debt.
    To avoid the effect of the statute of limitations set up by defendant in an action on a note, plaintiff introduced in evidence a letter, written by defendant to the holder after the statute had run against the note. In the letter defendant says, in substance, that the money was borrowed on bis credit; that it is difficult for him to pay; and that he is sorry he cannot comply with the wish of the holder for payment; and says, in conclusion, “Howmuch will you take for the notes? Isendyou five pounds a monthfrom the beginning of next May. Will you take fortypounds? The whole I will pay will be a loss to me; you must lose some. ” Held, that the letter is an acknowledgment of the indebtedness of defendant on the note, sufficient to take the case out of the statute. Manchester v. Braedner, 107 N. X. 346, 14 N. E. Rep. 405, and McNamee v. Tenny, 41 Barb. 495, distinguished.
    Appeal from circuit court, Oneida county.
    Action by William C. Cudd against Rhys Gwesyn Jones on a promissory note. From a judgment entered on a verdict for plaintiff, and from an order denying a motion on the minutes for a new trial, defendant appeals.
    Affirmed.
    The action is upon a note, a copy of which is as follows:
    “$500. Utica, FT. Y., Jan. 1st, 1874.
    “One day after date we promise to payto the order of Ann Owens five hundred dollars, with use, at Welsh Land and Emigration of America office, 104 Genesee St., Utica, FT. Y. Rets Gwesyn Jones, Pres.
    “David T. Davies, Treas.
    “Value received.”
    In defense the defendant set up the statute of limitations, and that the note was given and received as the corporate note of a corporation called “The Welsh Land and Emigration Society of America,” of which the defendant was the president, and David T. Davies the treasurer. To avoid the effect of the statute, the plaintiff relied on a letter written by defendant to the assignor of plaintiff before she transferred the note. The letter is as follows:
    “Utica, FT. Y., December 8th, 1887.
    
      “Mrs. Ann Thomas—Dear Friend: I am very sorry that I am not able to comply with your wish to pay the note due to you from David T. Davies. I never saw' the money, and never had any benefit from them. Besides your money, th re are other notes of about ten thousand dollars due, without any money to meet them. It was necessary for me to borrow near one thousand dollars to get things to a level, after coming back from California. I have been paying them in five or six pounds a month. I shall finish them by next April if I will have health; though I do not confess that I am under any obligation for the money you loaned David T. Davies, further than that my name is on the note, which is also true of many other notes that persons have in America. They know that I have nothing to pay with, and for that they do not ask. I believe that the Rev. Mr. Owen would not have loaned the money, only that it was for me to sign the note, and I would not have done so, only I believed Mr. Davies was rich and honest. Both of us have been unlucky in meeting him. Ffo doubt that it is difficult for you to lose the money, and it is difficult for me to pay them. I would be very glad to meet with you, and do all I can for the sake of peace. Many have received part of the debt from me. How much will you take for the notes? I send you five pounds a month from the beginning of next May. Will you take forty pounds? The whole I will pay will be a loss to me; you must lose some, so we will be friends again. R. G. Jones.”
    At the close of the plaintiff’s evidence, the defendant moved fora nonsuit, upon the ground that there is nothing in the letters submitted in the nature of a promise to pay the note in suit. This motion was denied, and defendant excepted. At the close of the evidence the defendant asked the court to direct a verdict for the defendant, on the ground that there was no evidence in the case to take the note out of the statute of limitations. The court denied the motion, and the defendant excepted.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      A. M. Beardsly and John B. Griffith, for appellant. Jones & Townsend, for appellee.
   Merwin, J.

The questions litigated upon the trial of this case were whether the defendant was personally liable on the note, and whether the defendant had made any acknowledgment or promise sufficient to avoid the bar of the statute of limitations. Mo point is now made upon the first question. The sufficiency of the evidence on the second question is attacked, as well as some rulings on the admission of evidence. In the course of the trial the plaintiff produced and offered in evidence five letters, written by the defendant to plaintiff’s assignor, dated, respectively, June 24, 1878, July 16, 1879, September 29, 1880, October 1,1883, and December 8,1887. These were objected to as immaterial and incompetent. The objection was overruled, and the letters received in evidence. The defendant now claims it was error to receive the first four letters, as those were written more than six years before the commencement of the suit, and therefore inadequate to relieve the bar of the statute. Assume they had no bearing on that question, they were material on the other question as to whether the note was given and received without design to make the defendant personally liable. It was therefore not improper to receive them.

The defendant also claims that it was error to receive in evidence the letter of December 8,1887, on the ground that it was an offer to compromise. This ground of objection was not taken at the trial. It was in the nature of a privilege, and should have been raised there. See Stevens v. Brennan, 79 N. Y. 255; Hoyt v. Hoyt, 112 N. Y. 495, 514, 20 N. E. Rep. 402. The objection, as made, was that the letter was immaterial and incompetent. Upon this being overruled, no exception seems to have been taken. The defendant is therefore not in a position to claim error in the reception of the evidence. The effect of the letter, assuming it to be properly in evidence, is, however, another question, and may be properly considered in determining whether the court erred in refusing to direct a verdict for the defendant.

The theory of the defendant is that the letter does not “acknowledge an indebtedness by the defendant on a note from which a willingness or intention to pay can be inferred.” The case of Creuse v. Defiganiere, 10 Bosw. 122, is cited. In that case it was held that a letter written by a debtor, in effect acknowledging the existence of an indebtedness and proposing a compromise, but distinctly indicating an unwillingness to pay, and a determination to pay nothing if the offered compromise be rejected, is not such a recognition of the debt as will take it out of the statute. The cases of Manchester v. Braedner, 107 N. Y. 346, 14 N. E. Rep. 405, and McNamee v. Tenny, 41 Barb. 495, are also cited. In the Manchester Case the general doctrine is said to be that the writing, in order to constitute an acknowledgment, must recognize an existing debt, and that it should contain nothing inconsistent with an intention on the part of the debtor to pay it. , In the McNamee Case it was held that the acknowledgment need not express an intention to pay the debt. In that case the defendant, evidently referring to a design to take the benefit of the two-thirds act, wrote the plaintiff as follows: “Ihave been working at my matters since you was here, and find that I can get two-thirds of my indebtedness off; but dreading to take the act, for the name of it, I have come to the conclusion that I would borrow of my friends, providing that I can make a satisfactory arrangement. I propose to pay all my creditors twenty per cent, cash on'the original notes or bills; that is the best I can do, and that is more than I can do without help.” He soon after wrote again that he made the same offer to all alike, and that, if he could not make it a general thing, he should try the other way; that he could raise enough to paythe 20 per cent., and make a final settlement; and stated the amount which, at that rate,would be coming to plaintiff. These letters were objected to on the ground, among others, that they were offers of compromise; but the objection was overruled, and exception taken. A verdict was ordered for the plaintiff, thereby, in effect, holding that the letters constituted a sufficient acknowledgment, and this was sustained at general term. This case is somewhat adverse to the contention of the appellant. There are some early cases indicating that the acknowledgment should express a willingness to pay. A different conclusion is reached by Davies, J., in Henry v. Root, 33 N. Y. 534, upon a review of the cases upon that subject. In Kincaid v. Archibald, 73 N. Y. 193, it is said that, if the writing contains either a promise or acknowledgment, it is sufficient.

The latest enunciation that we have been referred to, of the rule on this subject, is in the Manchester Case, above referred to. Upon that basis, the question here is whether in the letter of December 8, 1887, there is anything inconsistent with an intention on the part of defendant to pay the debt. The defendant in that letter, in substance, admits his liability on the note, and that it is unpaid. There was therefore an existing obligation. He says he had none of the money himself, and in that sense, as it may be argued, was not under any obligation for the money. Still he says, in substance, that the money was loaned upon his credit. He says it is difficult for him to pay. He does not say he will not pay, and does not intimate that he has any defense. On the contrary, he says, at the start, that he is sorry that he is not able to comply with the wish of the holder of the note for payment. He in conclusion asks how much she will take for the notes, and makes an offer. Did this offer stand alone, there would be force in the suggestion that it would not be a sufficient acknowledgment. The letter is, however, to be taken as a whole. There was no controversy between the parties or any dispute as to the amount of the debt. The previous correspondence showed this. In the letter of September 29, 1880, he had said he would pay her every cent. It has been held that a statement of inability to pay anything does not destroy the effect of an acknowledgment otherwise sufficient. De Forest v. Hunt, 8 Conn. 179; Chidsey v. Powell, 91 Mo. 622, 4 S. W. Rep. 446. It might be otherwise if there was a refusal to pay. In the present case we think the letter of December 8, 1887, furnished sufficient evidence of an acknowledgment by defendant of an existing debt against him upon the note; and that it should not be said, as matter of law, that the letter contained anything inconsistent with an intention on the part of the defendant to pay it, or that, in effect, nullified the acknowledgment there made. The relations of the parties and the surrounding circumstances were to some extent shown, and, if the intention of defendant was material, there was evidence sufficient to make it a question of fact to be passed upon as such. It follows that the motions of the defendant for a nonsuit, and for a verdict in his favor, were properly denied. Ho point is made as to the manner of the submission of the case to the jury. The judgment should be affirmed.

Martin, J., concurs.

Hardin, P. J.,

(concurring.) Section 395 of the Code of Civil Procedure provides that “an acknowledgment” contained in a writing is the only competent evidence to take a case out of the statute of limitations. “An acknowledgment” of the debt by the defendant is made manifest by his letter. “It was a distinct recognition of the existence of the debt.” Anderson v. Sibley, 28 Hun. 18. It was said in Allen v. Trisdorfer, (Com. Pl. N. Y.) 4 N. Y. Supp. 896, that upon such “an acknowledgment the plaintiff was entitled to recover.” I concur in the opinion of Merwin, J., and favor an affirmance.

Judgment and order affirmed, with costs.  