Ashley v. Vischer

By the Court, Sawyer, J. The question in this case is, whether, under the Statute of Limitations, the two causes of action set out in the complaint are barred in two or four years. The following are the instruments to be construed :

“Received of John Morrison, Esq., the sum of two thous- and seven hundred and fifty dollars. San Francisco, February 24, 1855.

“ (82,750.) Edward Vischer.”

“ This is to state that I am holder of three checks on Page, Bacon & Co., (viz : $380 70, $514 40, $227 44,) amounting to eleven hundred and twenty-two dollars and sixty-three cents, to be converted into cash as best possible, and to be applied to the account of John Morrison. San Francisco, February 24, 1855.

“ ($1,122 63.) Edward Vischer.”

The Court below held that an action to recover the money referred to in the first instrument was barred in two years ; in the last, not till four years; and, accordingly, entered judgment in favor of defendant on the first, and against him on the second. Both parties have appealed.

A party may commence “ within four years, an action upon any contract, obligation, or liability, founded upon an instrument in writing.” * * * “ Within two years, an action upon a contract, obligation, or liability, not founded upon an instrument in writing, except an action on an open account for goods, wares, and merchandise, and an action for any article charged in a store account.” (Wood’s Dig. p. 47, Sec. 17.)

The first instrument is a receipt for a specified sum of money —a mere naked acknowledgment that so much money had been received. There is no contract connected with it—no promise or undertaking in regard to it. It is a mere naked [326]acknowledgment, without any intimation as to the character in which the money was received, or of any intention or purpose with respect to its future disposition. It does not appear to whom the money belonged. As an instrument of evidence, a mere receipt is governed by rules different from those applicable to other writings expressing contracts or obligations; and this fact serves to illustrate the character of the instrument under consideration. As an acknowledgment of payment or delivery, it would be merely prima facie evidence of the fact, and not conclusive. The fact it recites might, therefore, be contradicted by other evidence. A receipt may have connected with it—embodied in the same instrument—a contract to do something else; and in that case it would possess a double character. As a receipt it might be contradicted; while as a contract it would stand on the footing of all other contracts in writing, and could not be contradicted or varied by oral testimony. (1 Greenl. Ev., Sec. 305.) And the reason why a different rule of evidence is applied to a mere receipt seems to be because it is not in any sense a contract, as it does not express or import a promise, obligation, or liability. It is an admission, only, upon which other parties do not ordinarily act, and are not liable to act to their prejudice. (Ib., Sec. 212; 1 Phil. Ev. 474, Note 131.)