45 A. 402 | N.H. | 1897
To avoid the bar of the statute of limitations pleaded in defence of the plaintiff's suit upon the defendant's *184
promissory note, a referee finds that the defendant, after refusing to pay the note under threat of suit, permitted the plaintiff to take for application on the note nine cords of wood at a price two and one half times its value. The plaintiff cut and measured the wood, and having informed the defendant of its amount, told him he had credited it to him on his account. The plaintiff replied: "Well, all right." The defendant did not expect payment for the wood otherwise than as it might be applied on the plaintiff's claim. Upon this evidence the defendant's motion for a nonsuit was denied, and the referee found a new promise by the defendant. Can a new promise be found from the evidence? "Such promise need not be expressed; it may be implied. The inference that the defendant, within six years prior to the date of the writ, made such new promise, may be drawn from such declarations made, or acts done (including silence under some circumstances), at a particular time within the six years, as show his acknowledgment at that time that the debt was unpaid, that he was liable to pay it, and that he was then willing to pay it." Brown v. Latham,
"An acknowledgment, in order to take a case out of the statute, must contain an unqualified admission of a previous subsisting debt which the party is liable and willing to pay." Gage v. Dudley,
"Mere payment is not such an acknowledgment. It must appear that the payment was a partial one, leaving a part of the debt unpaid, and that the debtor so understood it. If this does not appear, the payment does not show his acknowledgment of his liability and willingness to make another payment." Brown v. Latham, supra. "The efficiency of a payment to avert the effect of the statute of limitations as a bar, rests in the conscious and voluntary act of the debtor, explainable only as a recognition and confession of the existing liability." Lang v. Gage,
It is suggested that there is a conflict between the two cases cited and earlier decisions of the court, but no such conflict exists. The later cases are illustrations of the principles laid down in the earlier. In Whipple v. Stevens,
It is not the part payment which takes the case out of the statute, but the new promise of which it may be evidence; therefore payment of a part is not enough unless it is made under such circumstances that a promise to pay the remainder may reasonably be inferred from it. Brown v. Latham, supra; Wainman v. Kynman, 1 Exch. 118; Tippetts v. Heane, 1 C. M. R. 252.
An express new promise may be limited by conditions introduced into it. Stowell v. Fowler,
It is clear that the present case is not one in which the inference of a new promise is of necessity deducible from the evidence of payment, for the facts found are not inconsistent with an intention merely to avoid litigation upon a claim believed by the debtor to be unfounded. But if the debtor, in permitting the plaintiff to take the wood, intended to make and understood he was making a part payment upon a greater debt valid and subsisting against him, the inference of a new promise would follow. Whether the debtor understood the transaction the one way or the other was a question of fact; and taking into consideration the evidence of the manner in which prior payments were made and the finding of the referee that the debtor did not expect payment for the wood except as applied upon the plaintiff's claim we cannot say that reasonable men would not differ in the conclusion to be drawn therefrom. The referee finds a new promise, if from the facts reported a new promise can be implied. As the facts are not so inconsistent with such implication that such a finding must be set aside as against the evidence, the report is a finding that such promise was made. Upon this point the referee's finding of fact is conclusive. That the payment was in wood instead of cash, if so made by agreement between the parties, is immaterial. Hart v. Nash, 2 C. M. R. 337; Hooper v. Stephens, 4 A. E. 71. The fact that the wood was agreed to be reckoned at an exorbitant price bears only as evidence upon the question which the referee has found.
Judgment for the plaintiff.
All concurred. *187