Morgan County IL Archives Court.....Richards, Rescarick Ayers V George M 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 11:19 am

Source: Reports Of Cases
Written: 1850

Rescarick Ayers, appellant, v. George M. Richards, appellee.

Appeal from Morgan.

Where the introductory part of a declaration is in the appropriate form for 
debt, but all the counts are strictly and technically in assumpsit, it will be 
considered a declaration in assumpsit. (a)

Where the items of an account are read to a party, and he admits the 
correctness of each item and of the whole account, but as to certain items, 
stated that he thought the whole or a part of them had been paid by his son, 
and that he thought the account was correct, and that he would see his 
creditor and settle with him, such admissions do not show a new promise within 
five years. (b)

In order to take a case out of the statute of limitations, there must be a 
promise to pay the debt: such promise may be implied from an express and 
unqualified admission that the debt is due and unpaid, nothing being said or 
done at the time to rebut the presumption of a promise to pay; but the 
admission of the debtor, that an account is correct, that he received the 
goods or money, or that he executed the note, will not be sufficient for the 
purpose, unless it is also expressly admitted that the debt is still due and 
unpaid.

In an action of assumpsit, on an open account, the last item of which accrued 
more than five years before the commencement of the action, the statute of 
limitations is a good defense.

The declaration in this case commenced as in debt, and concluded to the damage 
of the plaintiff of $1,000. The body of the declaration had but six counts, 
which were all in assumpsit. To this declaration defendant replied, that he 
did [not owe the sum of $1,000 demanded as debt in the plaintiff's 
declaration, etc., and gave notice with his plea, that he would rely upon the 
statute of limitations of five years, as a bar to the plaintiff's demand.

By agreement, the cause was tried by the court, Woodson, Judge, presiding, at 
September term, 1850, and a judgment was rendered for the plaintiff, for 
$429.90, whereupon the defendant below appealed to this court. Upon the 
finding of the issues for the plaintiff, defendant interposed a motion in 
arrest of judgment, which was overruled. The only testimony in the case shows, 
that the witness called upon appellant, and "showed him the account, and read 
over to him each item of account, and as he read, Ayers admitted to the 
correctness of every item, and of the whole account, but as to the items for 
the board of his son, he stated that he thought that item, or a portion of it, 
had been paid by his son. He further stated to witness, that the account was 
correct, and that he would see Richards and settle with him. On his cross-
examination, the witness stated that Ayers never intimated to him that he had 
any off-sets against account, or that it had been paid, except that he had 
supposed his son had paid for the board or a part of it. On being asked 
whether Ayers promised to pay the account, witness stated that he made no 
other promise than that he would see Richards and settle it."

The appellant moved the court for a new trial, upon the ground "that on the 
evidence in the case, the court ought to have given judgment in favor of the 
defendant, under the statute of limitations of five years," which was also 
overruled.

D. A. Smith, for appellant. 

M. McConnel, for appellee.

Caton, J. The introductory part of this declaration is in the appropriate form 
for debt, but all the counts are strictly and technically in assumpsit. This, 
according to the cases of Cruikshank v. Brown, and McGinnety v. Laguereure, 5 
Gilman, 75, and 161, is a declaration in assumpsit, and not in debt. The 
counts being all in assumpsit, there was no misjoinder, and the motion in 
arrest of judgment was properly overruled. 

It can make no difference in the result here, whether we consider the 
testimony of McConnel as so referring to the account filed with the 
declaration, as to enable us to look into that as a part of the evidence or 
not. By doing so, we see that more than five years had elapsed from the date 
of the last item in the account, and the commencement of this action, so that 
the statute of limitations constituted a good defense. Nor did the testimony 
of the witness show a new promise within the five years. He says he "read over 
to him each item of the account, and as he read, Ayers admitted to the 
correctness of every item, and of the whole account; but as to the items of 
the board of his son, he stated that he thought that that item, or a portion 
of it, had been paid by his son. He further stated, he thought the account was 
correct, and that he would see Richards and settle with him." In order to take 
a case out of the statute of limitations, there must be a promise to pay the 
debt. Such promise may be implied, it is true, from an unqualified admission 
that the debt is due and unpaid, nothing being said or done at the time, 
rebutting the presumption of a promise to pay. It is not sufficient that the 
debtor admitted the account to be correct, or that he had received the goods 
or the money, or had executed the note sued on, but he must have gone further, 
and admitted that the debt was still due and had never been paid. The bare 
admission of the correctness of the account, or genuineness of the note sued 
on, is no more a satisfactory answer to the statute than would be the 
testimony of a witness proving the same facts. The statute presupposes the 
debt to have been due, and that there is no evidence that it has ever been 
paid. It would be absurd to say that a promise shall be implied by the bare 
admission of the party, of what the law itself supposes to be true. It has 
been even regretted by many learned courts, that parol testimony has ever been 
allowed to do away with the express statute, that especially, that any implied 
promise has been allowed to have that effect, for it certainly offers great 
inducements to pervert and distort the statements of parties, in order to make 
out a new promise. There is certainly great discrepancy in the decisions of 
different courts on this subject, and some courts have undoubtedly allowed a 
looser rule to prevail than the one which we have adopted, but we think the 
weight of authority, and certainly the reason of the case, are in favor of the 
views which we have stated.

It is true here is an inference, and a very strong inference, that this 
account had not been paid. But there should be an express admission of that 
fact, in order to infer the new promise. But one inference is to be admitted. 
No more should be admitted, when dispensing with an express act of the 
legislature. An inference upon an inference would be too unsubstantial for 
such a result. By the rule which the current of decisions has compelled us to 
adopt, the statute may be substantially repealed in the particular case. Were 
the question a new one, we should hold that no suit could be maintained upon 
the old cause of action, but only upon a new and express promise, for which 
the old cause of action might be a sufficient consideration, as in case of a 
debt which has been discharged by bankruptcy.

This being an action of assumpsit, on an open account, and the last item of 
the account having accrued more than five years before the commencement of the 
action, the statute of limitations was a good defense, and a new trial should 
have been granted.

If it be objected that the account, not being copied into the bill of 
exceptions, but only referred to by the witness, so that we cannot know what 
that account was, then we say, that as the evidence fixes no amount, except by 
reference to the account sued on, when that is withdrawn from view, there is 
no evidence whatever to justify the verdict. If we can look at the account 
filed with the declaration, and referred to by the witness, to ascertain the 
amount, then we cannot help seeing, that the last item bears date more than 
five years before the commencement of this suit.

Let the judgment be reversed and the cause remanded.

Judgment reversed.

Treat, C. J., dissented.


----------------

(a) T. W. & W. R. Co. v. McLaughlin, 63 Ill., 389.

(b) For a discussion of what is sufficient to remove the bar of the statute of 
limitations, see Keener v. Crull and wife, 19 Ill., 189. A promise to pay if 
the creditor will wait awhile, or till the debtor "makes a raise," will take a 
note out of the statute of limitations: Homer v. Starkey, 27 Ill., 13. And 
such a promise is not a conditional promise:  Sennolt v. Homer, 30 Ill., 429. 
A conditional promise to pay, or a promise to pay on a contingency a debt, 
barred by the statute of limitations is not sufficient to remove the bar. As 
to such promises, see Mellick v. DeSeelhorst, B. Breese, 221, and note; Kimmel 
v. Schwartz, Id., 278, and note; Mullett v. Shrump, 27 Ill., 107; Dickinson v. 
Sutton, 40 Ill., 403; Teesen v. Camblin, 1 Bradw., 424. Generally, to take the 
case out of the statute there must be either an unqualified promise to pay the 
debt, a conditional promise with performance of the condition, or an 
unconditional admission of the justice of the debt: Parsons v. N. I. C. & I. 
Co. of LaSalle, 38 Ill., 480; Norton v. Colby, 52 Ill., 198; Carroll v. 
Forsyth, 69 Ill., 127: Wachter v. Albee, 80 Ill., 47. Such new promise need 
not be an express promise to pay. The debtor clearly admitting the debt to be 
due and unpaid, and using language showing an intention to pay is sufficient:
Wooters v. King, 54 Ill., 343. A promise to a third person does not remove the 
bar of the statute: McGraw et al. v. Forsyth, 80 Ill., 596 (S. C. 69 Ill., 
127); Teesen v. Camblin, 1 Bradw., 424. R. S. 1874, ch. 83, sec. 16.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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