11 N.H. 170 | Superior Court of New Hampshire | 1840
The plaintiff relies upon three several promises of Roberts, the defendant’s intestate, to take this claim out of the operation of the statute of limitations. Two of them were made while Margaret Hopkins was ad-ministratrix upon the estate of the plaintiff’s intestate, and all of them were upon the condition that something should be received from the French government, upon a claim he had against that government on account of the seizure of a vessel.
Upon each of these occasions there was a distinct acknowledgment of the existence of a debt, and an express promise of payment upon the happening of a certain event; and if Hopkins himself had then been alive there could have been no question that here was sufficient to take the case out of the statute, and sustain an action, upon the happening of the contingency.
It is objected, that the contingency upon which payment was to be made has never happened, and that the action cannot be maintained, for that reason; and if the objection is founded in fact, it is sufficient to defeat the action. Where there is an admission of a debt otherwise barred by the statute, with a conditional promise of payment, no action can be sustained upon the demand, if the defendant relies upon the statute as a bar, unless it is shown that the contingency has happened. 4 N. H. Rep. 316, Atwood vs. Coburn, and cases cited.
But we are of opinion that the construction which the de
It has been further objected, that the action cannot be sustained because the full amount of the claim on the French government has not been received, but only a dividend upon it. Had the matter rested upon the evidence of what was said in 1820, this objection might perhaps have been valid. Roberts had the power to make the payment depend upon such contingency as he pleased. We have only to ascertain his meaning. In 1820, according to the evidence, he said if he received his claim he would pay this account. If this had been the language upon the other occasions also, there would have been much force in the argument that he had made the receipt of the whole claim a condition precedent to the payment—that there was no rule of construction by
It is further objected, that there was no person in existence to whom a valid promise could be made in 1833, there being then no personal representative of the intestate, nor any one who could maintain a suit; and that the administrator de bonis non since appointed cannot for this reason maintain an action; and if this objection might avail, a question would arise whether there is such a privity between the present plaintiff and the administratrix, Margaret Hopkins, as that the plaintiff can maintain an action on the conditional promises made in 1817 and 1820, during her administration ; if there is no objection to them on account of the lapse of time since they were made. There is, in some of the English
Upon this reasoning, the action in such cases must be brought upon the new promise. And a similar process of reasoning, if extended farther, would lead to the conclusion that, in order to avail himself of a conditional new promise, a party must declare upon it, averring that the contingency upon which it was to be operative had occurred. The reporter’s abstract in Haydon vs. Williams, 7 Bing. 163, is to that effect, and some of the reasoning of the court certainly points to such a conclusion. But that was not the decision, for Mr. Ch. Jus. Tin dal explicitly says, “ Without, therefore, determining whether such promise ought or ought not to be specially declared upon, it is sufficient to say, that in this case there was no proof of the defendant’s ability to pay at the time of the action brought, so as to satisfy the condition and make the promise absolute and unqualified, like those in the declaration.” A similar decision was made in Tanner vs. Smart, 6 Barn. & Cres. 603. But Lord Tenterden, in that case, evidently considered that it was sufficient to de-
It is stated in the marginal abstract of Jones vs. Moore, 5 Binney 573, that “ An acknowledgment does not revive the old debt, but is evidence of a new promise, for which the old debt is a consideration.” This, however, is not sustained by the opinions delivered. If it were so, it would be
Furthermore: If the action was brought upon the new promise, there would be nothing to be taken out of the statute, for the new promise is never within it. And this shows also that the action should be founded upon the original contract, and that although there must be a new promise, or an acknowledgment from which a promise may fairly be inferred, the reason of this is, not that the action is founded upon the new promise, as its substantive cause, but because nothing short of evidence of a debt due, and of an intention to pay it, is sufficient to take the original demand out of the statute, and remove the bar, which would otherwise defeat the action. This continues or restores the vitality of the original demand.
Upon these views there is no difficulty in sustaining this action upon the first count in the declaration. It was not necessary that there should have been any personal representative of Hopkins in existence in 1833, to receive the acknowledgment or promise then made, for the action is not founded upon that. It is only used as evidence of the existence of a prior debt, which the party was willing to pay upon the happening of a certain contingency; and the fact that the contingency has happened, so that the bar is entirely removed, might well be given in evidence to support the issue, had the defendant pleaded the statute specially; because, upon the construction given to the statute in actions of assumpsit, the substance of a plea founded upon it, (whether it take the shape of an allegation that the defendant did not promise within six years, or that the cause of action did not accrue within that time,) is, in fact, that no cause of action has existed within six years prior to the commencement of the suit. And any evidence which shows the existence, within that period, of a legal claim, or debt, such as is described in the declaration, and which is admit
It may be added, that in this case there is no technical issue except the general issue, the defendant having filed a brief statement that he should rely upon the statute of limitations instead of pleading it ; and there would, therefore, be no such technical difficulty as was the foundation of the English decisions which have been cited, even if they were regarded as furnishing a sound rale where new promises are made to the representatives of persons deceased.
Judgment on the verdict.