Higdon v. Stewart

Tuck, J., delivered the opinion of this court. The defendants’ first exception presents the question, whether the evidence of Day was sufficient to remove the bar of the statute of limitations? Upon a careful re-examination of the cases so often reviewed in this court, we are of opinion that the point ought to have been decided with the defendants below. What passed in the presence of witness, between Higdon and Stone, and the subsequent remarks of Higdon to Day himself, must be treated as portions of the same conversation or transaction; and, indeed, if taken separately, the result would not be different.

Whether they were sufficient for ¹¹¹ She purpose for which the evidence was offered by the plaintiff, must depend on the inquiry, did they amount to “an admission of a present subsisting debt?” of which character must be an acknowledgment, to take a case out of the statute. Frey vs. Kirk, 4 G. & J., 509 . We consider this case as covered by the principle established, and over and over recognized in this court, that where the debtor makes an acknowledgment, accompanied by a qualification or declaration, which, if true, would exempt him from a moral obligation to pay, he will not be bound. Oliver vs. Gray, 1 H. & G., 204 .

It appears that these parties had accounts for several years — Higdon acting as deputy sheriff for Stewart, making collections and performing other services, with no agreement as to his compensation, and no settlement, except that he had made payments for moneys collected. It is manifest that if they had disagreed, and Stewart had sued Higdon in his life time, the latter could have discharged himself only by proving the value of his services, and the payment of the sums for which he might claim credit. These would have been the basis of a set oil' or discount, and if the services happened to be barred by limitations, or he could not produce proof ol their value, or of his payments, the case deprecated by the court in Oliver vs. Gray, would have arisen. Higdon would have bound himself, while his own declarations would not ho.ve revived his remedy against Stewart; and thus he might have been compelled to pay a claim on his own admission, when most clearly the case, as stated by himself, if true, would not entitle the plaintiff to recover.

These views were expressed in Mitchell vs. Sellman, 5 Md. Rep., 376, and Lockes’ Adm. vs. Sasscer, 8. Md. Rep., 374. As we have said, the declaration or acknowledgment must be taken as a whole, and it cannot be disproved as to any part; offered by the plaintiff as his proof,, he will not be allowed to adopt the admission and reject the qualification. The declarations indicate that Stewart had presented an account which Higdon deemed incorrect, for he said to Day,, if he was to settle according to Stewart’s ideas, he would owe ¹¹² him a smart sum of money, and in the same interview he said he did not think he owed him any thing.

How an implied promise to pay a debt can be imputed to a man who says he does not think he owes any thing, it is difficult to perceive. We suppose Higdon was willing to have had a fair settlement,