| N.Y. Sup. Ct. | May 15, 1831
By the Court,
The judge stated the law correctly to the jury, as far as he went. The statute of limitations forms a bar to the contracts enumerated in it, on the ground that lapse of time raises a presumption of payment; when, therefore, the admissions of the debtor repel the presumption of payment by recognizing a subsisting demand, a promise is raised by implication of law; an express promise is not necessary, The acknowledgment, however, must be explicit, and without a denial of the equity or legality of the demand ; hence, if the defendant denies the justice of the demand, or reposes himself upon the statute, a promise will not be presumed ; or, “if such acknowledgment is qualified in the way to repel the presumption of a promise to pay, then it will not be evidence of a promise sufficient to revive the debt and take it out of the statutes.” 15 Johns. R. 520. The jury, in this case, must have been of opinion that the defendant, in making the admission which was proved, made other declarations inconsistent with the idea of a promise. The defendant said he was poor, and unable to pay any thing at that time, but he hoped to see the plaintiff and do something about it. The defendant certainly did not intend to make a promise to subject himself to an action, in the same breath, when he declared his inability to pay the demand; and the jury, taking the whole into consideration, have come to the conclusion that he intended to refuse the payment at present. He evidently intimated that he was not liable, when he expressed a hoped to -see the plaintiff, and do something, and asked what his other creditors would do, implying that he might expect trouble
The language of Mr. Justice Story, in Bell v. Morrison, 1 Peters’ R. 351, has been cited and adopted in this court and in the court for the correction of errors. 3 Wendell, 190. Id. 536. The doctrine laid down is this: that an acknowledgement from which a promise is to be implied, should contain an unqualified and direct admission of a previous and subsisting debt which the party is liable and willing to pay; and that if, from all the conversation, th e presumption of a promise isrepelled,ox the expressions be equivocal, leading to no certain conclusions, then they ought not to be submitted to the jury as evidence of a new promise. The case how before the court seems to me such an one as is there described; the expressions were vague and, indeterminate, leading to no certain conclusion, and at most only to probable inferences, which may affect different minds in different ways. If I am right in supposing this to be the character of what was said by the defendant, then the judge would have been justified in refusing to submit the testimony to the jury, according to the case last referred to, and that of Clarke v. Dutcher, 9 Cowen, 679, where it was held, that where the facts are undisputed, it is for the court to determine whether they take the case out of the statute or not ; but where there is any dispute as to the facts which tend to prove the new promise, then the question is a mixed question of law and fact, and should go to the jury.
It is not to be denied that the cases on this question are contradictory ; to undertake to reconcile them would be a hopeless task, But the latter cases in- this case—in the supreme court of the United States—in England, and in some of our sister states, are in accordance with the rule as. above expressed. I am therefore of opinion that a new trial be denied.