Colorado § 13-80-113 - New promise - effect of payment.

§ 13-80-113. New promise - effect of payment.

No acknowledgment or promise shall be evidence of a new or continuing contract sufficient to take a case out of the operation of the statute of limitations, unless it is in writing signed by the party to be charged; but this section shall not alter the effect of a payment of principal or interest.

Source: L. 86: Entire article R&RE, p. 701, § 1, effective July 1.

Editor's note: This section is similar to former § 13-80-125 as it existed prior to 1986.

ANNOTATION

Law reviews. For article, "A Victim of 'Permissive Counterclaims'", see 18 Dicta 83 (1941). For comment on Fastenau v. Asher, appearing below, see 24 Rocky Mt. L. Rev. 119 (1951).

Annotator's note. Since § 13-80-113 is similar to former § 13-80-125 as it existed prior to the 1986 repeal and reenactment of this article, relevant cases construing that provision have been included with the annotations to this section.

This section affects only the mode of proof and does not alter the substantive law. Van Diest v. Towle, 116 Colo. 204, 179 P.2d 984 (1947).

This section applies only to actions in personam. Fastenau v. Asher, 124 Colo. 161, 235 P. 2d 587 (1951).

The promise to pay must be express. To remove the bar of the statute of limitations so that a debt otherwise barred may be recovered upon a new promise, there must be an express promise to pay it. Thomas v. Carey, 26 Colo. 485, 58 P. 1093 (1899).

It must be a full recognition of the indebtedness and a promise to pay it. Although, after a new promise, the action can be maintained upon the original consideration, recovery can only be had upon the new contract to pay, hence, it must have the necessary elements of a contract. It must be a full recognition of the indebtedness evidenced by the note, and a promise to pay that particular debt. Sears v. Hicklin, 3 Colo. App. 331, 33 P. 137 (1893).

The debtor may impose conditions. Where the debtor was under no legal obligation whatever to pay the debt, whatever promise he made was entirely voluntary; and the authorities universally recognize his right to impose any condition which he might deem proper. Richardson v. Bricker, 7 Colo. 58, 1 P. 433, 49 Am. R. 344 (1883).

This section does not interfere with general rule as to effect of payment. This section clearly evidences the legislative intent not to interfere with the general rule that the payment of interest, before the running of the statute, removes the demand therefrom, and that proof of payment may be by parol. Lieske v. Swan, 93 Colo. 396, 26 P.2d 807 (1933).

An offer in compromise is not an admission of the debt so as to remove the bar of the statute. Van Diest v. Towle, 116 Colo. 204, 179 P.2d 984 (1947).

Nor are references to debt only for purpose of identifying collateral. References to a debt in correspondence about exchange of the collateral on the debt pursuant to a corporate reorganization did not constitute an acknowledgment of the debt, where the reference was made to the debt only for the purpose of identifying the collateral. Van Diest v. Towle, 116 Colo. 204, 179 P.2d 984 (1947).

Alleged promise to pay a debt is not evidence of a new or continuing contract sufficient to bar application of the statute of limitations unless it is in writing. An oral acknowledgment of an existing debt and forbearance to bring suit alone are insufficient to invoke equitable estoppel. Equitable estoppel requires evidence that the defendant's actions adversely affected filing the plaintiff's claim. Samples-Ehrlich v. Simon, 876 P.2d 108 (Colo. App. 1994).

Applied in Berthoud Nat. Bank v. Dunn, 762 P.2d 759 (Colo. App. 1988); Mountainwood Condo. v. Cal-Colorado, 765 P.2d 1066 (Colo. App. 1988).