71 Me. 313 | Me. | 1880
When a new promise is relied on to take a debt out of the operation of the statute of limitations, and the new promise is a conditional one, the plaintiff cannot recover unless he proves performance of the condition. Proof of the promise
In the case now before us, the defendant’s promise was conditional. He said, " I would say now as I said before, and also told Mr. Ward, that when I was able I should most certainly settle the demand; but I am not now, nor have I been, in a condition to settle it.” Such a promise is not sufficient to take a case out of the operation of the statute of limitations, without proof of the defendant’s ability to pay. There was no such proof, and the determination of the justice of the superior.court that the evidence was sufficient to entitle the plaintiff to recover, was erroneous.
Exceptions sustained.
New trial granted.