52 A. 927 | N.H. | 1902
The evidence does not disclose either an unqualified admission of an existing debt which the defendant was liable and willing to pay, or an express promise to pay the debt or to waive the statute. The motion for nonsuit should have been granted. The defendant could make overtures for a settlement to avoid litigation without being prejudiced thereby, although any independent admission made during a treaty of compromise would be binding upon him. Dodge v. Leavitt,
The testimony of Edward Rossiter, that the defendant said, "I will compare books and papers, and if I owe that note I'll pay it," furnishes nothing for the jury. It certainly cannot be construed *388
into an agreement to pay if, upon looking over books and papers, Rossiter came to the conclusion that the defendant owed the note; and as no other person but, the defendant was to participate, the statement merely amounts to an undertaking by the defendant to pay if he came to the conclusion that he owed the note. The statement, "If I owe that note I'll pay it," cannot be separated from the rest of the sentence. The whole must be taken together. There was no evidence of an unqualified promise to pay what was due; and the soundness of the decision in Eastman v. Walker,
Exception sustained.
All concurred.