
    Anna Davis, Resp’t, v. Frances A. Noyes, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    1. Limitation—Acknowledgment.
    To constitute an acknowledgment sufficient to take a claim out of the statute the writing must recognize an existing debt and contain nothing inconsistent with the intention to pay it.
    2. Same.
    Letters repudiating a claim for a loan, but acknowledging an agreement to make good to the one addressed a loss met with through the writer’s advice in relation to the purchase of stocks and stating that the agreement, would be performed, is not an acknowledgment of the claim within the meaning of the statute.
    Appeal from a judgment entered in Montgomery county upon the report of a referee.
    
      Orin Gambell, for app’lt; Mead & Hatt, for resp’t.
   Landon, J.

—The statute of limitations is a bar to the plaintiff’s recovery, unless the letters of the defendant contain an acknowledgment of the defendant’s indebtedness or a promise to-pay it. Code Civ. Pro., § 395. The writing must recognize an existing debt, and contain nothing inconsistent with the intention to pay it. Manchester v. Braedner, 107 N. Y., 346; 12 N. Y. State Rep., 263.

The parties were intimate friends and were amateurs in stock speculation. On the 25th of July, 1882, the defendant had on deposit $535 with Spencer Trask & Go., their stock brokers. On that day she called upon the plaintiff with a copy of the Wall Street News. That sheet contained an article predicting a rise in the C., C., C. & I. R. R. Co.’s stock. The parties relying upon the prediction agreed to buy together 100 shares of the stock. The defendant thereupon ordered the stock in her own name, paying $500 margin. The price of the stock kept falling and $1,300 more margin was paid, of which the defendant paid $300, and the plaintiff handed the defendant $1,000, which the defendant also applied. Whether $500 of this sum was a loan to the defendant, or whether the plaintiff contributed the whole $1,000 as margin, was in issue upon the trial and decided in favor of the plaintiff. The transaction was closed October 14, 1882, resulting in a loss ■of $1,000. The $800 surplus of the margin was received by the defendant and used by her in further stock speculations upon the joint account of both parties. These further speculations do not appear to have been profitable, and although the fact is not distinctly found, the $800 and a little more were probably lost

The plaintiff grieved over her loss, and the defendant in 1886 promised to pay her $500 upon account of it when she should receive her inheritance; the defendant accusing herself of blame in trusting to the misleading prediction of the Wall Street News.

Subsequently the parties engaged as partners in the millinery business in Amsterdam, H. Y. They lived in the same apartments, and it would appear that the defendant occasionally made small ventures in stock and oil speculations. August 6, 1888, they dissolved their partnership, the defendant selling out to the plaintiff, and upon a full accounting of their partnership affairs the plaintiff gave the defendant a note for $500. The plaintiff remained in Amsterdam and the defendant took up her residence in Lansingburgh. The referee found that this action was commenced more than six years after the cause of action accrued. He also found that on the 25th of August, 1882, the plaintiff loaned the defendant $500. He did not in terms find that the defendant made a subsequent promise to pay or acknowledgment of ■ the debt, but he refused to find that she did not

On May 10, 1889, the plaintiff wrote to the defendant: “I wish to speak to you about my note for $500, which will become due in August. You will remember that I drew $1,000 from the bank before we came to Amsterdam, and let you take it to buy O., C., 0. & I.,- $500 for yourself and $500 for me. As you know, the whole amount was lost, and you always said that when you got your inheritance you would make your part to me good, so that the whole loss might not fall upon me, since it was through you that the money was used at all. I did not ask you to give me your note for the amount, trusting to. your honor. * * * I think it would be only fair that you return me the note and call the matter square.”

The defendant replied the same day: “Your letter has this moment arrived, and I am more than surprised at the contents. * * * Stunned to death as I am, I still say you may indeed count upon my honor; that will never fail; and I should comply at once with your request and send you the note only that I am wholly unable to do so at present * * * I will do just as I said about the three C’s money, although I hold myself by every method of reason and argument wholly free.”

May 11, 1889, the plaintiff writes: “ I don’t know what method of reasoning you use to argue yourself wholly free about the three C’s money.”

May 12, 1889, the defendant writes: “As to the three C’s money, you know it was never thought of as a loan; consequently the idea of a note never entered into the arrangement I was taking the Wall Street News and we were dealing in stocks. * * * When I brought the paper down to you we both felt impressed with it. I grant I made the proposition, * * * and as it was my proposition, I made the offer of my own free will, and I never go back on my word, so I am just as determined as ever to carry out my proposed plan and pay one-half of that loss.”

Under date of May 16, 1889, defendant writes: “As to the three C.’s it is a debt of honor, and shall be paid.” And under date June 3, 1889, first stating that she had found the brokers’ letter and a memorandum of tier own, defendant writes: “Referring again to the three G.’s, . * * * I find it went out on a stop at 75; that when the market continued dropping I put on 100, then 300 that I borrowed from Judge Parmalee, and after that 200 of store money, and then let it go. So you see that when I have paid you 500 as one-half of your 1,000, that my loss will be 1,100 to your 500. Now, I am not finding fault, neither do I wish to be excused from paying you what has been agreed upon."

The correspondence from which the above extracts are made is-voluminous. Other extracts could be added of the like purport.

The letters speak for themselves. No reference to oral testimony ' is necessary, further than to enable us to understand what is the subject matter treated upon.' The meaning of the letters is not affected by the referee’s finding that the $500 was a loan. We are to construe them in the sense in which the defendant wrote them. They are unmistakably to the effect that the-defendant did not borrow the $500. The letters repudiate that claim. But they contain her acknowledgment that, because she-had induced the plaintiff to engage with her in the purchase of . the stock upon the prediction of the Wall Street News, she would make good to her half of her loss; that was what - she had said and agreed to, and still meant to do. Such an acknowledgment does not meet the requirements of the statute.

The judgment is reversed, referee discharged, new trial granted,, costs to abide the event

The defendant made a motion for a new trial upon newly discovered evidence. The motion was denied and the defendant ap- " pealed, and that appeal is also before us.

We affirm that order, with costs.

Learned, P. J, and Mayham, J., concur.  