6 Gill 82 | Md. | 1847
delivered the opinion of this court.
The defendant’s first prayer is as follows:- .
“ That if the jury shall believe, that at the interview between. Tams' and Guy, Tams said to Guy, I never troubled you for the payment of what you owed me; and Guy said he was aware of it, and if he was allowed a little time, he would pay all his debts, and that he, Guy, would certainly do his best for Mr. Tams; that such is not a new assumption to take the case out of the statute of limitations.”
This prayer raises no question as to the conformity of the proof to the pleadings in the case; it impliedly assumes the correctness of the pleadings; and simply calls on the court to instruct the jury, as to the law arising on the facts which it contains. But were it otherwise, and the court below
What is the nature of the new promise stated in the prayer to have been made in the case before us ? That, if he were allowed a little time he would pay all his debts. The condition for the allowance of a little time has been fully performed by the forbearance of the plaintiff below for nearly two years in the prosecution of his claim. To the interpretation given by the appellant’s counsel to the concluding words of the promise, and that he, Guy, would certainly do his best for JMr. Tams, we cannot accede. Those words were not used to revoke or change the previous promise to pay if a little time were allowed him; but to strengthen and inspire confidence in the promise made, and to induce its acceptance. Had it been the intent of the appellant to promise to pay when he should be able, he would have used apt words for that purpose, and not made, as he did, a positive promise of payment, if but a little time were allowed him. In refusing the instruction re
By the second prayer, the defendant called on the court to instruct the jury, “ that if the jury believe that Tajry^went with witness, Kerr, to Guy's house, and that while there, Tams entered into conversation with Guy, and said to him, I never troubled you for the payment of the debt you owed me, but did not produce or show any evidence or evidences of debt to said Guy, nor say, nor intimate, that he then held two notes of said Guy, or indicate to Guy in any manner the amount of his claim, then, although the jury believe, that in that conversation Guy did say, if you will allow me a little time I- will pay your debt, and he would certainly do his best for him, does not remove the bar of the statute of limitations.” Before the court could have granted this prayer, it must assume the truth of every fact in support of the plaintiff’s claim, which the jury under the testimony before them, were competent to find. It must, therefore, assume, as facts found by the jury, that apart from the statutory bar, the defendant was indebted to the plaintiff in the amount of the two promissory notes, of which he had given evidence; that such indebtedness was the identical debt to which the plaintiff and defendant referred in their conversation detailed in the prayer; and that since the promise, nearly two years elapsed before the plaintiff had instituted the present action for the recovery of his claim. These were facts dehors the prayer, and for the finding of which, by the jury, there was. e vidence before them legally suffi
judgment affirmed.