Kallenbach v. Dickinson

Citations

• 100 Ill. 427
• 1881 Ill. LEXIS 115

Syllabus

<p>1. Limitations—partial payment—implied new promise therefrom— joint debtors—partial payment by one—effect as to co-debtor. In order to remove the bar of the Statute of Limitations in respect to a debt, there must be a new promise to pay the debt. But to bind a party to a new promise there must exist the elements essential to a new contract, .express or implied. There must be such circumstances as will reasonably authorize an inference of an intention to waive the bar of the statute. There must be affirmative action or conduct designed to prospectively affect the rights of the parties to the prior contract.</p> <p>2. This new promise may be implied from the fact of a partial payment made after the bar of the statute has become complete, by the party originally chargeable. But in order to authorize the inference of a new promise from the fact of such payment, the party making the payment, and sought to be charged thereby, must have had an affirmative intention in making the payment, and that it should be applied to the particular debt.</p> <p>3. In respect to the effect to be given to the making of a partial payment, as authorizing the inference of a new promise, payment before the bar is complete, thereby arresting the running of the statute so that it shall commence to run anew, and payment afterward, whereby the bar of the statute is removed, rest upon precisely the same principle. In either case, if the running of the statute is arrested, or if the bar already complete is removed, it is because of the new promise, express or implied, and it is that new promise,'—i. e., contract,—resting upon the consideration of the old debt, where the statute is pleaded, that is replied to take the case out of the statute. In either case the same elements of contract must exist.</p> <p>4. It is doubtless the law that joint debtors, in matters respecting their joint indebtedness, may, to a certain extent, bind each other by their admissions,—but this can only be as to facts aff