#### Carrie Killian, Administratrix, Defendant in Error, v. Vaclav Tesar, Plaintiff in Error.

Gen. No. 19,502.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Joseph E. Rían, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Reversed with finding of facts.

Opinion filed February 24, 1915.

Statement of the Case.

Action by Carrie Killian, administratrix of the estate of her mother, Josephine Novak, deceased, against *477Vaclav Tesar to recover on- a note executed April 6, 1890, due two years after date and payable to decedent. Letters of administration were issued to plaintiff on September 7, 1912, and on September 13, 1912, the action was commenced. Plaintiff alleged that a “part payment of $150 was made by defendant in 1905, and a new written promise to pay, dated June 29,1912, was made by defendant to plaintiff.”

Abstract of the Decision.

1. Limitation of actions, § 117 * —when evidence insufficient to show payments on note. In an action on a note the evidence was *478 held insufficient to show a payment thereon within ten years prior to the commencement of the action.

*477The instrument relied on as constituting a new promise was as follows:

“June 29, 1912.

Dear Niece:

I am very sorry but I cannot give yon any money just now, as I had taxes to pay and the street. Just as soon as I can I will settle with you.

V. Tesar.”

Plaintiff claimed that the promise was in response to a letter she had written defendant demanding the money.

Defendant denied the sending of the letter, testifying that aside from a few words he was unable to write English. He also claimed that he had paid all sums due from him to the estate and set up the statute of limitations.

From a judgment for plaintiff for $652, defendant brings error.

Q. J. Chott, for plaintiff in error.

James W. Burke, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samp topic and section number.

Mr. Justice Gridley

delivered the opinion of the court.

*4782. Limitation of actions, § 117 * —when evidence insufficient to show new promise. In an action upon a note due more than nineteen years prior to the commencement of the action, the evidence was held insufficient to show a new promise by defendant sufficient to-prevent the bar of limitations.