Jones v. Jones

21 N.H. 219 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

The last three indorsements on the note having been made by the defendant, the court instructed the jury, that they were evidence from which a new promise to pay the note might be inferred, and that it was the duty of the jury to draw that inference, if the evidence were not varied or controlled by other proof. In Roseboom v. Billington, 17 Johns. 182, it was held, that proof of an indorsement upon a note made at a time when its operation would be against the interest of the party making it, would be evidence for the consideration of the jury. In the case of the Utica Ins. Co. v. Kip, 3 Wend. 373, Savage, C. J., was inclined to think, that an indorsement upon a note was sufficient to take it out of the statute. In the Exeter Bank v. Sullivan, 6 N. H. Rep. 134, it is said to be well settled, that an acknowledgment of a subsisting debt which the party is liable and willing to pay, in general amounts to evidence of a promise which may take an action out of the statute ; and that a payment in part is, in general, considered as amounting to such an acknowledgment. At the present day there is probably little difference of opinion on this point, and there can be as little doubt that it is the duty of the jury to find the new promise, if there be nothing to control the evidence. If a partial payment be evidence of a debt which the party is liable and willing to pay, and there be nothing to qualify the evidence, the jury cannot, without a violation of their oaths, return as verdict against the evidence, and find that there was no promise. We think the instruction of the court was correct.

It is argued by the defendant, that this debt may be set off, notwithstanding the provision in the statute, that the demand should be exhibited within two years from the original grant of administration to the executor or administrator. But the debt proposed to be set off is like any other debt against an administrator. It acquires no new qualities by being made to assume the shape of a set-off. It is merely a cross demand. The provisions of the statute can no more be dispensed with than can those of the Statute of Limitations, and a debt barred by the Statute of Limitations cannot be set off. Cranch v. Kirkman, Peake, 121. The statute provides, that no demand shall be pleaded by way of set-off which was not justly due and accruing to the party pleading it at the time of the plaintiff’s commencing his suit. (N. H. Laws, 79, ed. of 1830.) And a similar provision exists in the Revised Statutes, 338, § 10. There is no reason for dispensing with the necessity of a presentment here, which would not exist in any other case, and the ruling of the court was correct.

The written evidence of the defendant’s charges falls far short of what the law requires. The paper produced was a copy, and the original was lost; but the original would have been incompetent evidence, if produced, for it consisted merely of entries made by the defendant on loose sheets of paper. It has been held, that the charges in the handwriting of the party must appear in such a state that'they must be presumed to have been his daily minutes of his transactions and business. Eastman v. Moulton, 3 N. H. Rep. 157. These loose sheets of paper by no means come up to such a standard. We cannot presume, that the transactions and business of a person are recorded in such a manner, and we think the evidence was properly excluded.

The case finds, that the intestate said, the mill-account between himself and the defendant ought to be settled. The defendant then offered to prove, that he had such an account, and produced one, but offered no evidence of it, and contended, that it was evidence in itself. It is unnecessary to say more on this point, than that the court could not have done otherwise than exclude it as evidence.

The case also. finds, that the intestate, the defendant, and others jointly owned a saw-mill, and that the defendant produced his book, upon which were. certain charges against the saw-mill; but he did not prove, that the mill-owners were partners, or that he was their agent, or that the intestate authorized the repairs, or who were the owners, or what were their shares. The position of the defendant is, that this being the only account produced, the jury may infer that this was the account the intestate referred to, when he said that the mill-account ought to be settled. No person but the defendant had any interest in producing a mill-account. Admitting that this was the account referred to by the intestate, his statement was at most an admission that some mill-account existed. It does not admit that he owed any balance, or the items on either side. But the statement is not specific enough to show that this was the account. It is entirely indefinite and inadmissible, and was properly excluded.

Judgment on the verdict.