Kittredge v. Brown

9 N.H. 377 | Superior Court of New Hampshire | 1838

Upham, J.

The confession made by the defendant, that there was something due the plaintiff on account, with the promise that the fact of its being outlawed should make no difference, brings this case within that of Walker vs. Eastman, 6 N. H. R. 367, and entitles the plaintiff to the recovery of a nominal sum.

It has been contended, however, that such confession opens the claim on account to the admission of the ordinary evidence to sustain it, and that whatever sum is proved to be due on trial should be considered as so much acknowledged by the debtor, which he is ready and willing to pay.

Can this position be sustained ?

It is well settled that a conditional, or limited promise of payment of a debt, barred by the statute of limitations, revives the claim no further than the actual extent of the promise. Exeter Bank vs. Sullivan, 6 N. H. R. 124, and authorities there cited.

The admission of the party is to be taken as he makes it, and he is to be charged on that alone.

An admission that there was something due on account on a claim not barred by statute, would be a mere admission of a nominal sum, and would not relieve the plaintiff in any ordinary trial from full proof of such account, if any thing was claimed beyond a nominal recovery. If so, its effect could not be greater in a case barred by the statute of limitations.

But where there is a promise to pay any thing on account, and there is testimony to show the amount the party conceives to be due, the promise will extend to such sum.

In this case there is evidence to this effect. In a conversation subsequent to that we have referred to, the defendant said he did not know how much the plaintiff’s account would be, but he thought it would be twenty-five or thirty dollars, and perhaps more. He said that his son had his property, and was bound to pay his doctor’s bills, and to maintain him ; but this declaration is no denial of his own liability to the plaintiff, but merely an assertion that, as between his son and himself, the son should pay the debt.

The promise to pay may be connected with the amount here confessed to be due. as showing the extent to which hie plaintiff designed to bind himself in making such promise. The declarations together show a liability on account of at least twenty-five dollars, and a willingness to pay that sum, or such evidence of a willingness to pay as would be competent to submit to a jury. There should, therefore, be judgment for that amount, according to the agreement in the case. Judgment for the plaintiff.