{ "id": 1467099, "name": "McMahon v. O'Keefe", "name_abbreviation": "McMahon v. O'Keefe", "decision_date": "1948-03-22", "docket_number": "4-8498", "first_page": "105", "last_page": "108", "citations": [ { "type": "official", "cite": "213 Ark. 105" }, { "type": "parallel", "cite": "209 S.W.2d 449" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "203 Ark. 745", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447018 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/203/0745-01" ] }, { "cite": "203 Ark. 1078", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447030 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/203/1078-01" ] }, { "cite": "219 S. W. 746", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "142 Ark. 471", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1590512 ], "opinion_index": 0, "case_paths": [ "/ark/142/0471-01" ] }, { "cite": "11 L. R. A., N. S. 825", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "103 S. W. 732", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "83 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527105 ], "opinion_index": 0, "case_paths": [ "/ark/83/0278-01" ] } ], "analysis": { "cardinality": 426, "char_count": 5460, "ocr_confidence": 0.523, "pagerank": { "raw": 6.22383782585142e-08, "percentile": 0.38487031483302697 }, "sha256": "cfd0c89712d78c6abc15355c14f6576262f25452eaeeb0539fb2b43925df49af", "simhash": "1:983699e509458fe8", "word_count": 1017 }, "last_updated": "2023-07-14T14:58:24.264428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, J., not participating." ], "parties": [ "McMahon v. O\u2019Keefe." ], "opinions": [ { "text": "McHaney, Justice.\nOn July 8, 1947, appellee sued appellant on a promissory note for $614.13, dated April 25, 1942, and payable on demand with interest at 4% per annum. He alleged that said note had not been paid although demand therefor had been made; and that on or about February 22, 1945, and July 1, 1945, appellant wrote letters to him which acknowledged said debt and promised to pay said note, but had failed to do so. He prayed judgment for the amount due. He attached the letter of February 22, 1945, to the complaint as a part thereof. On motion of appellant, appellee was required to attach .a copy of the letter of July 1, 1945, to liis complaint. Appellant then demurred to the complaint on the ground that the complaint and the exhibits show that the alleged debt is barred by the statute of limitations. The court - overruled the demurrer, and, appellant refusing to plead further, judgment was entered against him for $741. This appeal followed.\nA note payable on demand is due immediately, and the statute of limitations, \u00a7 8933, Pope\u2019s Digest, begins to run from the date of the note. Sturdivant v. McCarley, 83 Ark. 278, 103 S. W. 732, 11 L. R. A., N. S. 825; McCollum v. Neimeyer, 142 Ark. 471, 219 S. W. 746. This action, having been brought more than five years after the date of the note, was barred by said statute unless, same was tolled by either or both.of the letters above referred to, both written before the statute bar had attached. In his letter of February 22, 1945, written from Bryant, Arkansas, appellant acknowledges receipt of a letter from appellee of February 17. While this latter letter is not in the record, it must have been a demand on appellant to pay his indebtedness owing to appellee, because appellant\u2019s letter goes into great detail stating the reasons why he cannot pay it right away. Among other things he said: \u201cI have a little money due me that I have been trying to collect for the last four months and the last time I talked to the party they thought that about the middle of March to the first of April they would be able to pay me off. I\u2019ll contact them right away and see if there isn\u2019t some way that they can expedite their paying me what I have coming. The amount isn\u2019t enough to clear me up with you but every little bit will help and I do my best to try and borrow some some place to .make up the difference.\u201d Also he said: \u201cI am telling you just how things are without any frills attached but I also want you to know that I will get in behind this thing and will do everything to see you through. \u2019 \u2019\nThe letter of July 1, 1945, reads as follows: \u201cDear Charlie: Have been gone for about two weeks, just returned yesterday and found your letter of June 12th.\n\u201cThings are beginning to pick np in so far as I am concerned and it probably won\u2019t he so long until I will be able to help out.\n\u201cWe expect to have a new contract signed up within the next few weeks and also I have another deal on the outside that looks like it may go over. It requires quite a hit of financing hut I have some wealthy men who told me they would handle that part of it and so expect.them to get on the dotted line within the next ten days.\n\u201cTheir attorney has been instructed to draw the papers and check the title. It is a deal on coal.\n\u201cDon\u2019t think it will he too long and all I can say is that as quick as T get any part of it I will send it along to you.\u201d\nWe think these letters clearly constitute an express acknowledgment of the validity of debt due on the demand note and, by inference at least, a promise to pay same. They, therefore, had the effect of tolling the statute, constituting a new promise to pay from their respective dates, and the action having been brought within five years from either date was not barred and the court correctly so held.\nSome courts hold there is a distinction between a new promise made before the statute has run and one made after the bar has attached, and that it requires less evidence to create a promise to extend or toll the statute than when the debt is barred. 34 Am. Jur. \u00a7 293. Our court seems to follow the general rule that no such distinction is to he made. We held in the recent case of Root v. Thomas, 203 Ark. 1078, 160 S. W. 2d 46, to quote headnote 2, that: \u201cIn order for an acknowledgment of a debt to be sufficient to extend the time for filing an action upon the indebtedness, there must he an unconditional promise to pay or the circumstances must be such that such a promise can be inferred from the writing itself, and the unconditional promise to pay must be made by the parties from whom the debt is due to the parties to whom the debt is due, or to his or her authorized agent.\u201d See, also, cases there cited. In Street Imp. Dist. No. 113 of Hot Springs v. Mooney, 203 Ark. 745, 158 S. W. 2d 661, we held that, \u201cif by fair construction, the writing constitutes an admission that the claim is a subsisting debt, and if the acknowledgment is unaccompanied by any circumstances repelling a presumption that the party intended to pay,\u201d the acknowledgment is sufficient to toll the statute.\nAppellant did not deny his debt to appellee in either of said letters and there is nothing therein to repel a presumption that he intended to pa3r.\nThe judgment is correct and is affirmed.\nHolt, J., not participating.", "type": "majority", "author": "McHaney, Justice." } ], "attorneys": [ "Pryor, Pryor \u00e9 Dobbs, for appellant.", "Franklin Wilder, for appellee." ], "corrections": "", "head_matter": "McMahon v. O\u2019Keefe.\n4-8498\n209 S. W. 2d 449\nOpinion delivered March 22, 1948.\nPryor, Pryor \u00e9 Dobbs, for appellant.\nFranklin Wilder, for appellee." }, "file_name": "0105-01", "first_page_order": 121, "last_page_order": 124 }