Curtis v. City of Sacramento

McKinstry, J. 1. As was said by the learned judge of the Superior Court, “this action is not upon the original verbal promise. There is no averment that the defendant promised to pay plaintiffs what their services should reasonably be worth, and that they were worth ten thousand dollars. The averment is, [that in 1878 the defendant was indebted to the plaintiffs in the sum of ten thousand dollars for professional services, and that thereafter, on the 29th of July, 1878,] the defendant promised in writing to pay to the plaintiffs the sum of ten thousand dollars within two years from the twenty-ninth day of July, 1878; and the only promise in writing offered in evidence is the agreement to arbitrate. But that agreement contains no promise to pay ten thousand dollars, or any other specific sum of money. There was merely an agreement to submit matters in controversy [414]to arbitrators. They awarded six thousand dollars, and the court set aside the award. The written promise is not, therefore, the promise alleged.”

If the court below had allowed the proposed amendment to the complaint, the result must have been the same.

It is urged that the recital in the arbitration agreement—“ Whereas, the city of Sacramento is indebted to the firm of Curtis & Clunie for legal services rendered by said firm in the several actions, .... and whereas, the board of trustees of said city and said firm differ as to the amount of said indebtedness,” etc. — is an acknowledgment in writing such as is contemplated by section 360 of the Code of Civil Procedure.

While a debt barred by the statute of limitations may be revived by an implied promise created by a clear and unqualified acknowledgment of the debt, yet if the acknowledgment be accompanied by such qualifying expressions or circumstances, as repel the idea of a contract to pay, except to the extent or upon the conditions named, no implied promise to pay absolutely is created. (Biddel v. Brizzolara, 56 Cal. 380.) The acknowledgment must be a direct, unqualified, and unconditional admission of a debt which a party is liable and is willing to pay. The most positive acknowledgment of a pre-existing debt is insufficient if accompanied by a declaration which is inconsistent with an intention to pay. (McCormick v. Brown, 36 Cal. 185; Chabot v. Tucker, 39 Cal. 437.) If the debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consideration. But if the debtor promises to pay the debt when he is able, or by installments, etc., the creditor can claim nothing more than the promise gives him. (Phelps v. Phelps, 3 Hare, 281.)