The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-03-29
OPINION or THE COURT BY WHITING. J.
DrcrvurE TEEv. l>9>.

This action III as>um~it goois -"d and delivered
The last purchase made May Since then The
defendant has made Part payment in four nsalcn the l'
three Of which made within twenty ouhs 81 the
filing Of this action in the Dsc; Court. The defendant
pleaded tho general issue and also 1t Limitations
The action commenced IN the District Court. JULY 1885
and the of limitations hal unlc part payment.
made took the claim of the email ielancc
claimed by the plaintiff.
The appeal the Court. where thc
Court decided for the defendant saying. the question Il
whether there has bCCn a promise Ta e the
defendant within the statutory period pay the claimed
such would take the of the of Limitations,
there Is evidence both sides. Il !. shown ly Irc
pondcrancc Of evidence tina; promise made ~ the
defendant
The plaintiffs exceptions that the dcCi.on u contrary
the law and the evidence, and also the overriding 81
motion for a new trial ri the ssm grounds
The question Is whether the plaintiff hs. proves, prom
such will the the of limitations
We held in In 10 Tai Lang law. s53, that IAN
acknowledgement promise may H. inferred from the fact
of part payment of within wears Part payment
only prima facc evidence and may bC cued by other
evidence and by the circumstances under which made
The Court imply promise from the fact 81 part
payment inference Of law It &c left the jury
To take debt of the Of Limitations ly
of acknowledgment promise, it l. necessary that
there should be unqualified acknowledgment only that
the debt just but that continues due the time Of the
acknowledgment that promise pay fairly 10 implied
Weston =. Hodgkins Mass 3s6.
The burden IS the plaintiff prove ~ prCondcranc
of evidence promise sufficient revive the debt ueLis
KunlWdkcd, . IIaw. IL
y careful examination Of the evidence has satisfied that
support the decision 81 Circuit
Curry waive that the plaintiff had failed prove BY pre-
pondeancc Of evidence promise py The evidence
Is conflicting. The plaintiff says defendant promised ay
which defendant denies the of the balance and
also amount of payment Is disputed.
The last payment claimed by plaintiff $40 of wic bc
devoted S. different claim he had against defendant but
did inform defendant OF it the time. Defendant
paid SIS and lac did give her any receipt At the
Of this payment the plaintiff saws defendant said nothing the
defendant made payments HopP (hc assnor 81 bl a.
Snac without reservations but when Schnack presented the
BILL she said Il don't 1t and don't pay that Again
the payment 81 the SIS SChnack u handed him s5 and
that Is Hops bill; don't for any more
Defendant denies any promises pay There large
of testimony relating tho part payments and prom
ies pay, but it Is uncertain and indefinite the part
the plaintiff and conradicted by the defendant.
1t Is also submitted by the plaintiff that this s mutual
and that the only from the date 81 the
last payment The goods all sold in 1891 defendant
and thereafter cash payments made Nv her in rucou
of the account She had against plaintiff upon which
she had right Of action There mutualy IN ihs
account. Parker ScIr1Tf- Mas 81.
Exceptions ovcrrulcd.