McDonald v. Grey

Citations

• 29 Tex. 80

Syllabus

<p>It is free from all doubt that an acknowledgment which, by its immediate effect, will take a debt out of the bar of the statute of limitation must he clear and unequivocal, and neither qualified by conditions nor limitations. (Paschal’s Dig., Art. 4617a, Note 1027a.)</p> <p>If the new promise be upon condition, the plaintiff must prove a compliance with, or the happening of, the condition.</p> <p>If the condition be the offer of a compromise, the plaintiff must prove that he accepted the terms.</p> <p>But, on the other hand, it must be admitted that an unconditional acknowledgment of a part of the debt, although coupled with a denial of liability for the remainder, and a refusal to pay it, if not made as a qualification of the admission, will take so much of the debt as is acknowledged out of the statute. The law will imply a promise to pay the amount admitted to be due. It is not incumbent upon the creditor to show that he has admitted the validity of the objections of the debtor to that part of the debt which he repudiates, or to show that he had relinquished his claim to it. (Paschal’s Dig., Art. 4617a, 46176.)</p> <p>Where the defendant wrote a letter to the plaintiff, which, aided by his own admission as a witness, offered to pay the principal, but repudiated the interest, (see the letter in the statement,) the court construed the letter as an acknowledgment of the justice of the principal, and this court refused to reverse.</p> <p>The judgment being in excess of the verdict, the court allowed a remittitur as to the excess, and affirmed to the extent of the verdict.</p>