Batchelder v. Batchelder

48 N.H. 23 | N.H. | 1868

Smith, J.

Regarding the evidence in the light most favorable to the plaintiff, there is nothing to justify a recovery of the whole debt. If the defendant promised to pay a part of the debt by making a wagon the next year, in consideration of plaintiff’s giving up the note, but refused to renew the note, he did not thereby admit that the enlire original demand was a subsisting debt which he was liable and willing to pay. The old debt is the consideration for the new promise, and by the practice in this State the creditor must declare on the old promise; 11 N. H. 170; 43 N. H. 548; "but the new promise, and not the old debt, is the measure of the creditor’s right.” If the debtor promise to pay only a part of the debt, "the creditor can claim nothing more than the promise gives him;” see Wigram, V. Ch., in Philips v. Philips, 1 Hare 281, p. 299, quoted in 10 C. B. (N. S.) p. 750; Bowker v. Harris, 30 Vt. 424.

But we think there is no evidence tending to prove a new promise to pay even a part of the debt. The plaintiff’s proposition relative to defendant’s making a wagon, was silent as to value and time, but the law annexes the implied stipulation that the wagon was to be made within a reasonable time; Tyler v. Webster, 43 N. H. 147; and, as to the value of the wagon, the plaintiff must be regarded as having offered to accept a wagon of the average value of the wagons ordinarily used by persons living in the defendant’s neighborhood. What the value of a wagon of this description would be, is a question of fact for a jury; and, according to the later decisions in this State, the question what would be a reasonable time for the making is, also, in this instance, a question for a jury, the nature of the case being "such as to exclude the application of any general principle or definite rule of law.” Tyler v. Webster, 43 N. H. 147, p. 151; State v. Plaisted, 43 N. H. 413. See, also, Goodall v. Streeter, 16 N. H. 97.

The defendant did not in terms accept this proposal, but made an offer naming more definitely the time and value. It may be that a jury would find that the cost and time implied in the plaintiff’s proposal are not substantially different from those named by the defendant, but still we think the defendant should not be regarded as accepting plaintiff’s proposition. The legal construction and effect of plaintiff’s proposition is : "I will give up the note if you will make a wagon of the ordinary description within a reasonable time.” Th'e defendant does not choose to enter into a contract with terms left so indefinite as to render a disputo as to their meaning not improbable. He prefers to have the value and time definitely settled by the parties at the outset, and not left open, to be decided in case of dispute by the verdict of a jury. He, therefore, offers to make a wagon of a specified value, and at a time which he names. After some hesitation we have come to the conclusion that the defendant cannot, upon the evidence, be found to have accepted the plaintiff’s proposition, but must be considered as having made a new offer to plaintiff.

The defendant could not be bound by his new proposal "until the plaintiff bound herself by assenting to it.” His proposal was, in effect, an offer of compromise, not binding unless accepted; Atwood v. Coburn, 4 N. H. 315; Exeter Bank v. Sullivan, 6 N. H. 124, p. 133; Buckmaster v. Russell, 10 C. B. (N. S.) 745; and in the absence of evidence that the defendant’s proposal was ever accepted, his liability would be no greater than if such proposal had never been made. Neither the plaintiff’s silence, nor her omission to put the note immediately in suit, can be construed as a sufficient acceptance of the defendant’s offer. However this might have been, if the defendant’s offer had not involved the performance of any positive act by either himself or the plaintiff, (see Webber v. Williams College, 23 Pick. 302) it seems clear that the defendant could not reasonably be expected to make a wagon for the plaintiff the next year, unless he had a binding promise from the plaintiff to accept the wagon in exchange for the note.

Verdict set aside. Judgment for defendant.