The opinion
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OlivbR, J.
(specially concurring) — Although I concur generally in the majority opinion, I desire to comment upon the dissenting opinion. The dissent points out that the Iowa statute requires only an admission that the debt is unpaid. But to constitute an admission that the debt is unpaid the writing must necessarily refer to an existing liability. In the language of Penley v. Waterhouse, 3 (Clarke) Iowa 418, 440:
“An acknowledgment of the original justice of the claim, is not sufficient, unless accompanied with an admission of the party’s present liability.’’
All authorities agree that a statement that a debt at one time existed, coupled with a denial of present liability, is not an admission of a debt. The statute of limitations is a valid legal defense, and when the writing evidences an intention to rely upon that defense it does not constitute an admission that there is a subsisting enforceable obligation or a present legal liability.
A few other states have statutes governing revivors similar to those of Iowa. The courts of two of these have decided eases involving the proposition here in controversy. Both reached the same result as the majority opinion in this ease.
The statute involved in Golden Rule Oil Co. v. Liebst, 153 Kan. 123, 124, 125 , 109 P. 2d 95, 96, 97 , required only the acknowledgment of an existing liability, debt, or claim. In that case defendant wrote a letter referring to a promissory note and stating that if plaintiff would give him a job a certain part of his wages could be deducted and applied upon it.
His second letter stated:
“ ‘If I can ever get the money I will pay it though it is outlawed.’ ”
The court said the text of the letters “does not reveal a distinct and unequivocal acknowledgment of the ‘outlawed’ note as a present existing liability,” and was merely a conditional offer. With reference to the second letter, the decision states:
“The most explicit sentence in this letter was ‘If I can ever get the money I will pay it though it is outlawed.’ Cer
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tainly defendant’s words ‘though it is outlawed’ cannot be said to. acknowledge the note as a present existing liability. ’ ’
In Nelson v. Becker, 32 Neb. 99, 101, 103 , 48 N. W. 962, 963 , defendant wrote:
“ ‘In 1877 you, as attorney for Willis Nelson, wrongfully procured judgment against me for $2,000. Your judgment is-long since outlawed in this country, and was it not you could not collect from me. * * ® if you will cause the judgment to be discharged from record in Buffalo, I will pay you ($40) forty dollars.’ ”
The court said:
“In the first letter the defendant speaks of it as the ‘wrongfully procured judgment,’ and insists that it is barred in Nebraska by the statute of limitations. * * * The defendant was liable in New York, as the judgment was not barred there. The letters were nothing more than propositions to give $40 to buy his peace. The fair and reasonable construction of the language used, indicates that it was not the intention of Becker to unqualifiedly acknowledge that he was bound for the satisfaction of the judgment. To remove the bar of the statute, the debtor must unqualifiedly acknowledge an existing liability. ”
I am satisfied the majority opinion is sound in principle. No decision to the contrary, under any statute, has been called to my attention.
G-ARfield, Mantz, and Mtjlroney, JJ., join in this special concurrence.