22 Barb. 68 | N.Y. Sup. Ct. | 1856
Upon the trial of this action before me, without a jury, the making of the note described in the complaint was admitted. It was a joint and several note signed by all the defendants, dated in 1846, and due in May, 1847, for $500 and interest. The interest was paid and indorsed upon it in 1847 and 1848. In 1848, on the 5th day of August,, the defendants
I can find no case in the courts of this country in point. In Roosevelt v. Marks, (6 John. Ch. R. 266,) there had been no payment by the assignees of Marks and his partner, upon the demand in question, and this fact is strongly insisted upon by Chancellor Kent. And although he uses strong language as to the injustice of considering a payment of a dividend by the assignees of a bankrupt, or by trustees, as equivalent to a new promise by the original debtor, yet it should not be overlooked that he is speaking more particularly of the effect of such payments upon a co-obligee of the bankrupt, and that he is also considering the case of assignees in bankruptcy, who are not the agents voluntarily made by the debtor, and have no special directions to pay any particular debts.
In Hammon v. Huntley and others, (4 Cowen's R. 493,) the remark was made, obiter, that an admission by one of two executors would take a debt out of the statute. This was dis
I think, moreover, that even if any of these cases could be regarded as authorities to show that an admission by an executor or administrator is not sufficient to revive a debt, they would still not be decisive of the present question. The ground of these decisions is that executors and administrators are appointed simply to distribute assets for the payment of admitted or established debts, and not with the object nor clothed with authority to create liabilities, and with no express agency to pay any specific debts.
There is no doubt that a payment made by a debtor, of a part of, or upon, his pre-existing debt, is an admission of its existence, and of an existing liability to pay it, and that from such a payment the law will imply a promise to pay the residue. Such a payment furnishes the most satisfactory evidence of such an existing liability, and its assumption. It is a deliberate act against the interest of the party, and not liable to misrepresentation by witnesses, like a mere verbal acknowledgment. In the recent revision of our statute of limitations, therefore, the effect of a partial payment has been left as it has always been regarded to be, equivalent to a written acknowledgment of the debt or an express promise to pay.
The real question in all cases of partial payments, when they are not made by the party sought .to be charged, himself, is the question of the extent of the authority of the person by whom they were made. That was the question in Van Keuren v.
I think these considerations are decisive of the present case. Here the defendants Taylor and Flagler, within six years before this suit was brought, and before this suit was barred as to them by the statute of limitations, conveyed their property to trustees and directed them to pay this note among others, nam
There will, therefore, be judgment for the plaintiff, against the defendants Taylor and Flagler, for the amount remaining due on the note, and interest.
Emott, Justice.]