
    BILLS AND NOTES.
    [Butler Circuit Court,
    October, 1892.]
    Cox, Smith and Swing, JJ.
    
      Mary J. Stephenson v. Robert Line.
    Action Against Maker.
    No action can be maintained by the holder against the maker of a promissory note, an action on which is barred by the statute of limitations, on a verbal promise to pay thetsame, made after the bar of the statute had arisen, the consideration of the promise being the original and valid debt.
    Error to the Court of Common Pleas of Butler county.
    
      
      Affirmed by Supreme Court, without report, 54 O. S., 645.
    
   Smith, J.

On the 5th day of January, 1891, Mary J. Stephenson commenced action in the court of common pleas of Butler county, against Robert Line, and the averments of the petition were substantially as follows : That on Sept. 20, 1864, the defendant executed and delivered to Betsy Line his promissory note of that date, for $250.00, payable twelve months after date, and bearing interest from date. That in 1876 the administrator of the estate of said Betsy Line, for a valuable consideration transferred and delivered said note to the plaintiff who has ever since been the owner of the same. She says that frequently between 3876 and 1880, defendant promised plaintiff in consideration of' the premises to pay her said note with the interest thereon, but said promises were not in writing. That in 1885, when an action on said note was barred by the statute of limitations of fifteen years, in consideration of said note being justly due and of his previous promLc to pay the same, he again promised the plaintiff to pay the same, together with the interest thereon from Sept. 20, 1864, as soon as he paid for a small- piece of ground which he had bought, and she says he paid for the same lie same year. And that in 1886, for the same consideration, defendant again renewed his promise to pay plaintiff the same with said interest as soon as he got his barn, which he was then building, paid .for, and it ic averred that it was paid for in 1887. She says that these promises of 1885-6 to pay said note and interest were based upon sufficient consideration, and that a right of action accrued thereon, and that there is due to her from the said defendant, upon the said promises made by him after an action on the note was barred by the statute of limitations, the said sum of $250.00, with interest from Sept. 20, 1864, for which she asks judgment.

To this petition the defendant demurred, on the grounds that it showed on its face that the action was barred by the statute of limitations. Second — That it did not state facts sufficient to constitute, a cause of action against him; and, Third — That the plaintiff had not. legal capacity to sue. This demurrer was overruled by the court, and the defendant, filed an answer containing three defenses. First — A. general denial. Second — That plaintiff had no title to the ncte, and, Third — The plea of the statute of limitations, that more than twenty yearr had elapsed since the cause of action had accrued on the note, and no payment had ever been • ade thereon by the defendant and no written acknowledgment thereof or promise to pay the same had ever been made or signed by him; that the action v&wkey; barred more than ten years b fore suit brought. Thereupon the p.hintiff demurred to the third defense, on the ground that it was not sufficient, but It was overruled by the court, and exceptions taken. The reply filed admitted the allegations of the third defense to be true, but took issue as to the first and second defenses. A trial was had, which resulted in a judgment for the defendant, and a motion for a new trial was overruled.

We understand that the question for decision in this case, is simply this: Can an action be maintained by the holder, against the maker of f. promissory note (an action on which is barred by the statute of limi-tat ens), on a verbal promise to pay the same, made after the bar of the sirrir.te Uad arisen, the consideration of the promise being the original vp..dd debt?

The whole question might properly have been raised by a demurrer ic the petition, had it contained an averment that the promises so made were verbal only. But as this did. not appear, it may be that the demurrer was properly overruled, as the presumption may have arisen that the promise was in writing, and as a question of pleading, might stand on ri e same footing as one involving the statute of frauds, as to which the seems to be that in counting on a contract as to land, the petition need r.ct aver that It was in writing, even when it is necessary to its validity ihat i; be in writing, for the presumption will be, where a contract is allured. In a petition, that it is a valid and legal contract; Bates on Plead-rugs. 1C9 and 119. Tbe supreme court, however, ia the Corry ease, 64 ■Ohio St 849; seem to bave held tbe contrary to this in saying that a demurrer to a petition alleging a promise to pay a barred debt; but not saying whether is was or was not in writing, was properly sustained. But this question is not a material one in this case, for tbe question was squarely raised by tbe third defense in defendant’s answer, which tbe .reply of tbe plaintiff admits to be true.

Tbe question argued to us so fully by tbe counsel fcr tbe plaintiff in error, whether, when a valid promise to pay a barred debt ha- been made, tbe action should be on tbe original contract or on tbe new promise, does not seem to us a- material one in the decision of this case. In view of tbe apparently conflicting statements made in several of tbe decisions of canes in tbe supreme court, it might seem doubtful as to what is the better practice. It is probably correct, as stated by Judge Bates in bis work on Pleadings, page 118, that tbe Obio authorities a_low either mode to be adopted. We chink it clear though, since th . decision in 40 Olio Sts, 087, that it is good practice in a case like this to sue n the original claim, alleging the written acknowledgment or promise. But whether brought on tbe original contract, setting up tbe new promise as a reason why the statute of limitations should not bar tbe action, on brought on the new promise averring the old contract and tbe justness thereof as tbe consideration of the new promise, would not, we tbinSc, be at all material to the determination of tbe question whether the new pr omise should or should, not be in writing. Tbe idea or proposition that if tbe statute of 1858 (now section 49a2, Rev. Stat.) requires that a written acknowledgment or promise is necessary to confer a right oí action to recover tire amount of a debt barred by the statute of limitations, that this provision can be avoided or evadedtby suing on a new verbal promise, can not be entertained. Tbe rigb to recover could not depend upon tbe mere question whether tne action was nominally on tbe original debt, or on tbe new promise.

What then was tbe purpose, and what the effect of tbe section referred to? In our opinion, it was to do away entirely with the right (before that time existing), oí a person to recover on a claim vrnieh accrued after its passage, but which was allowed to become barred by tbe provisions oí tbe statute of limitations, on a verbal promise to pay tbe same made after it was barred. Ana that on tbe admitted facts of tbe case, tbe plaintiff bad no right to recover.

Tbe claim so earnestly maintained by tbe counsel for tbe plaintiff in error, that a recovery may be bad on tbe verbal promise, and that the statute only requires a written promise where tbe action is on tbe original contract made after tbe original cause of action was barred, seems to ns entirely untenable. It certainly has been tbe opinion of tbe players of tbe state, ever since the passage of tbe act ox 1.Jj3, that in all cases arising under its provisions a verbal promise or .cknowledgment would be cf no value whatever. Tbe law has been in force for nearly forty years. In all of that time, until this case, we bave no knowledge of tbe assertion of any claim to tbe contrary and no case is cited to us in which such a question was even suggested. On tbe other band, there are expressions in tbe opinions of tbe judges deciding cases, and cases decided by tbe supreme court, which are 'decidedly against any such dootrine, and lead tc tbe conclusion that the section in question is in the nature of a statute of frauds, and was designed to repeal or change tbe law as it before stood, that a verbal promise to pay a barred debt, was sufficient, and thereby to put an effectual stop to the evils which have been found to result from allowing evidence of verbal acknowledgments or agreements to pay barred debts.

Thos. Millikin, for Plaintiff in Error.

Wm. H. Horr, for Defendant in Error.

Thus in Swan's Treatise, 515, it is said: “If a person is prevented by the statute of limitations from recovering a debt, there is a moral and a prior obligation on the part of the debtor to pay it, and hence his new promise to pay it, if in writing, is binding.” In the decision of the case of Marianthal v. Mosler, 16 Ohio St., 570, Judge Day says : “It is apparent that the legislature did not intend to enlarge the facilities for taking cases out of the statutory bar. Before this can now be effected by an acknowledgment of an existing debt, or a promise to pay the same, ‘it must be in writing, signed by the party to be charged thereby.’ No change is made (by the statute of 1853) in the effect of a part payment of a debt.”

By the third paragraph of the syllabus in case of Courson's Ex'r v. Courson, 19 Ohio St., 454, it is held that “each item of an account to which the limitation of actions prescribed in the code of 1853 is applicable, is barred in six years after the right of action accrued thereon, unless there has been a part payment of the account, or an acknowledgment of liability thereon, or a promise to pay the same, ‘in writing, signed by the party to be charged thereby,’ within six years before the action commenced.”

In the case of Douglass v. Corry, 46 Ohio St., where the petition set up the existence of a debt which was allowed to become barred by the statute, and a subsequent promise to pay the same (not averring that it was in writing), and asking a judgment for the amount with interest, and not explicitly counting either on the original demand, or on the new promise, the court held that the petition showed the demand was barred by the statute. We think the holdings in this case, and that in 19 Ohio St., 455, conclusively settle the case against the plaintiff.

The judgment of the court of common pleas will be affirmed, with costs.  