Montgomery v. Yarbrough , 192 Miss. 656 ( 1942 )

ON SUGGESTION OF ERROR. With reference to the Stockton note to which we applied our six-year statute of limitations, Code 1930, Sec. 2292, as of the date of the original maturity of the note, appellee argues that under the law of Alabama a partial payment upon an existing obligation operates in substance as a new promise. If this be conceded, nevertheless it remains true, as said in Obear v. First National Bank, 97 Ga. 587, 25 S.E. 335, 336, 33 L.R.A. 384, that "a law prescribing the manner in which a new promise, or a payment from which such a promise will be implied, shall be evidenced in order to extend the period within which suit may be brought upon a contract, relates to the remedy, and does not affect the intrinsic validity of the promise." We look, therefore, to our own statutes for matters which relate to the remedy and as to how such new promises may be evidenced, and we find at once that our statute, Section 2318, Code 1930, provides that "In actions founded upon any contract, an acknowledgment or promise shall not be evidence of a new or continuing contract whereby to take any case out of the operation of the provisions of this chapter (Limitations of Actions) or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing signed by the party chargeable thereby."

Suggestion of error overruled.