Chapman v. Boyce

16 N.H. 237 | Superior Court of New Hampshire | 1844

Woods, J.

In the case of the Exeter Bank v. Sullivan, 6 N. H. 124, it was said, that a partial payment of a debt by a party who has contacted it, was a sufficient acknowledgment of its existence, and of the party’s liability in regard to it, to raise the inference, of a new promise to pay it, and thus prevent the operation of the statute of limitations.

The point came directly before us in the recent ease of Kenniston v. Avery, Grafton, July term, ,1844, and it was there expressly decided, that the promise of one partner during the existence of the firm, or during the period in which the party to whom the promise was made had a right to consider the partnership as being in existence, had the effect of .reviving the debt against both; and that a partial payment of the debt was tantamount to an express promise, it being evidence of the party’s recognition of the debt and his liability from which the law implies a promise.

This case finds that a payment was made by Pevey at the request and in the presence of the defendant, and by his consent, within six years next before the commencement of the action. This is the same thing as if the payment had been made by the party himself, and therefore concludes all question. It is evidence on which a jury might find a new promise. Judgment must accordingly be ordered for the plaintiff.

Judgment for the plaintiff.