Opinion
To toll the statute of limitations governing an action to recover a debt owed by a deceased person, the deceased person must have acknowledged the debt in writing. That statutory ( 52-176) requirement applies both to actions initially brought against the representative of a deceased person and to those in which, as here, a representative has been substituted as defendant upon the death of the original defendant. A letter written by the defendant executrix's decedent and proffered by the plaintiff as an acknowledgment of debt by the decedent in the action here to recover a 1937 debt allegedly owed by the decedent, because it failed to show an unequivocal, express promise by the deceased to pay, was not sufficient to remove the bar of the applicable statute of limitations. Consequently, the trial court should have rendered judgment for the defendant.
Argued May 3, 1979
Decision released July 31, 1979
Action to recover damages for an alleged debt, brought to the Superior Court in Fairfield County at Stamford and tried to the court, Levister, J.; judgment for the plaintiff, from which the defendant appealed to this court. Error; judgment directed.
The appellee filed a motion for reargument which was denied.
William T. Cahill, for the appellant (defendant).
Sperry A. DeCew, with whom was Kevin Tierney, for the appellee (plaintiff).
In 1971, the plaintiff instituted suit against the defendant Joseph Mercadante to recover on a debt allegedly contracted by Mercadante in 1937. Before trial, however, Mercadante died and Dorothy M. Sammis, the executrix of his estate, was substituted as the party defendant. The court found the issues for the plaintiff, concluding that the conduct and writings of Mercadante constituted a sufficient acknowledgment to remove the bar of the statute of limitations. From that judgment the defendant has appealed to this court.
This was done pursuant to General Statutes 52-599 which provides that actions commenced prior to a party's death may be Continued against the representative of the decedent.
The trial court found that on November 8, 1937, the New York investment securities firm of Kennedy Hall Company assigned to Edwin S. Whitehouse an $18,916.47 debt owed to it by Joseph Mercadante, in order to satisfy a debt which it owed to Whitehouse, and that between May 25, 1939 and December 18, 1939 Mercadante made payments to the plaintiff totaling $2925 on the debt. The court further found that Mercadante, during numerous conversations with the plaintiff between 1939 and 1966, acknowledged his indebtedness and stated his intention to pay.
On June 2, 1966, Mercadante sent the following letter to the plaintiff:
"Aluminum Forming Corporation 2 West 45th Street New York, New York 10036
Joseph Mercadante June 2nd President
Dear Whitehouse:
I did not write to you before because I am waiting for the lawyers to give me the agreement.
Also I cannot find your agreement, please let me know the amount and as soon as I get the contract I will write you a letter.
Regards
J. Mercadante"
We note at the outset that the plaintiff's action would unquestionably be barred by the statute of limitations, at least by November 8, 1945, unless the plaintiff were able to establish the necessary acknowledgment of the debt by Mercadante. When an action is brought against the representative of a decedent, however, the provisions of General Statutes 52-176 provide that an acknowledgment sufficient to remove the bar of the statute of limitations must be contained in a writing made or signed by the decedent.
Section 52-576 of the General Statutes provides that no action for an account or on a debt due by book to balance book accounts or on any simple or implied contract, shall be brought but within six years next after the right of action accrues.
Payments made on a debt toll the running of the statute of limitations.
"[General Statutes] Sec. 52-176. PROMISE TO PAY BARRED DEBT TO BE IN WRITING. In any action against the representatives of a deceased person, no acknowledgment or promise shall be sufficient evidence of a new or continuing contract to take the case out of the statute of limitations, unless the same is contained in some writing made or signed by the party to be charged thereby . . . ."
The record indicates that the trial court concluded that Mercadante's death, prior to trial, and the substitution of the executrix of his estate as the defendant did not operate to make 52-176 applicable. The court therefore admitted both oral and written testimony as to the existence and sufficiency of Mercadante's acknowledgments.
Although the defendant has briefed a number of assignments of error, the resolution of two issues is dispositive of this appeal: (1) whether the provisions of 52-176 apply to actions commenced against a living defendant whose death occurs before trial, and (2) whether Mercadante's letter of June 2, 1966 operates as an acknowledgment of an existing debt sufficient to remove the bar of the statute of limitations.
Clearly General Statutes 52-176 was designed to give the representative of a deceased person certain safeguards in defending a claim on a debt barred by the statute of limitations. The defendant contends that when an action has been commenced during a defendant's lifetime, the fact that the defendant dies prior to trial should also entitle the representative of his estate to these same substantive safeguards of 52-176. We agree. But for his death, Mercadante would have been able to respond in court to the plaintiff's allegations. That circumstance is particularly important where, as here, the credibility of the parties is generally the determinative factor in the judgment rendered. We conclude that the provisions of 52-176 are applicable and may be relied upon by the representative of the deceased defendant, despite the fact that the action was commenced during the defendant's lifetime.
Most states have so-called "dead man's" statutes which disqualify a party from testifying in a suit against the estate of a deceased person as to matters involving a transaction with, or communication by, the deceased. 81 Am.Jur.2d, Witnesses 303. Since Connecticut does not have such a statute, the substantive protection afforded the representatives of a decedent's estate by the provisions of General Statutes 52-176 is particularly important in defending the estate against fraudulent claims or unfounded causes of action.
Since the provisions of 52-176 apply, an acknowledgment sufficient to remove the bar of the statute of limitations must be in writing and signed by the decedent. The only writing attributable to Mercadante which the plaintiff has offered and alleged to be an acknowledgment written within six years prior to the commencement of this action is the letter of June 2, 1966. That letter, however, contains no express promise by Mercadante to pay a debt owed to the plaintiff. Lacking any such provision, the letter must contain an unequivocal acknowledgment of the debt which will justify the inference of a promise to pay in order to remove the bar of the statute of limitations. Sears v. Howe, 80 Conn. 414, 417, 68 A. 983; DeForest v. Hunt, 8 Conn. 179, 184-85; 51 Am.Jur.2d, Limitation of Actions 328.
The instant letter does not justify such an inference: it is not unqualified, it is not unconditional and it is not an acknowledgement of a debt as originally just and yet subsisting. Sears v. Howe, supra, 417; DeForest v. Hunt, supra, 185. Furthermore, there is no indication from the letter that any of the transactions or writings to which Mercadante referred — the "agreement" held by "the lawyers," "your agreement," and "the contract" — involved a personal debt. Moreover, the record reveals that Whitehouse himself testified that he did not understand the letter of June 2, 1966, in and by itself, to contain an unconditional acknowledgment of an existing debt.
While it is true that a written acknowledgment may be aided by other writings to which it refers or in answer to which it was written; Sears v. Howe, supra, 416; for such a writing to be incorporated, it must be in existence and be referred to by the person whose writing is sought to be considered as an acknowledgment.
Because there is no reference in Mercadante's letter of June 2, 1966, to any existing identifiable writing, there is no written evidence extrinsic to the letter to which the court can turn for guidance in interpreting the terms of the letter.
We conclude therefore that the letter of June 2, 1966, is not an acknowledgment of an existing debt sufficient to remove the bar of the statute of limitations.