Opinion
July Term, 1899.
Order affirmed, with costs. —
The order of the trial court setting aside the verdict should be affirmed as within the proper exercise of discretion, unless the defense of the Statute of Limitations is clearly valid. Section 395, Code of Civil Procedure, says: "An acknowledgment or promise contained in a writing signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of this title." If an acknowledgment of a "continuing contract" is made out by defendant's letter of February 15, 1892, that will suffice, whether a promise to pay is made therein or not. The plaintiff, a few days before that date, wrote to the respondent that he would like pay for the note. The respondent might have answered that he did not acknowledge any liability on it, but instead he wrote, "I am going to try to have the note settled in some way in a short time. * * * I am anxious to have it settled as it is growing more every year." It certainly was not growing more every year unless it was "a continuing contract." He promised to see the other makers, "all of them," and see "what can be done." Why trouble himself about it in this way if it was not "a continuing contract?" Finally he wrote, "if I have to pay it myself will you accept of it in installments, as I cannot very well spare so much out of my business in one payment." Clearly he meant that if the Whitakers should fail to pay it, it would be hard for him to do it, but do it he would. To say that this letter, written in response to the plaintiff's request for payment, does not amount to an acknowledgment of "a continuing contract," seems to me to be replacing its true meaning with a false one. I advise affirmance. All concurred, except Parker, P.J., and Putnam, J., dissenting.