11 Barb. 254 | N.Y. Sup. Ct. | 1851
By the Court,
The defenses which were set up in this case, were the statute of limitations, and an insolvent discharge. After the plaintiff below had closed his testimony, the defendant moved for a nonsuit. At this stage of the trial, it didnotappear that there had been a discharge under the insolvent laws, and the only question was, whether there was sufficient to go to the jury upon the first plea. The rule which was laid down in Bell v. Morrison, (I Peters, 351,) and which was adopted in the case of Purdy v. Austin, (3 Wend. 187,) and which has since been followed in this case is, that, in order to prevent a statutory bar, there must be an admission of a previous subsisting debt, which the party is liable and willing to pay. The first question which arises is, whether there was sufficient testimony, under this rule, to authorize the judge who tried this cause, in refusing a nonsuit 7 One of the witnesses introduced on the part of the plaintiff below, amongst other things, testified, in substance, that the defendant told the plaintiff that he would give him two notes, one at six months, and one at twelve months. That he wanted the plaintiff to feel at liberty to call at any time — that he could call at any time, and expect something from him. The other witness testified that this was a debt which he intended paying, and would pay. That he felt in honor bound to pay this debt, and would pay it. That he felt under ' obligations to pay the plaintiff, on account of services which he had rendered him. In addition to this there was proof that the defendant was able to pay the debt claimed by the plaintiff. This portion of the testimony was somewhat, though, as we think, not materially qualified, by other portions which have not been stated. But taking the whole together, we do not consider it, to use the language of the decisions above cited, of that equivocal, vague, and indeterminate character, leading to no certain
The next questions which arise are, whether the judge charged the jury as requested by the defendant’s counsel, and whether, if he did so, he was justified in so doing. The first request was, that he would charge that the defendant was not liable, unless the plaintiff had proved an express and absolute promise to pay the defendant. The judge charged that a promise, to have the effect of reviving a debt barred by the statute of limitations, or an insolvent’s discharge, must be clearly proved, and must be a promise to pay the whole debt. This, we think, went as far as the request of the counsel, and as far as the law warrants. The next request was, that the judge would charge, that an offer to pay something, which is not accepted, is not such a promise as will entitle the plaintiff to recover. This proposition was substantially contained in the judge’s charge, for he instructed the jury, that there must be a promise to pay the whole debt. The next request was the same as the first, with the addition, that the promise should be made after the discharge under the insolvent laws. This, we think, was also contained in the judge’s charge, for he stated that if the jury should be of opinion, upon the evidence, that the defendant, subsequently to Ms discharge, had made an unqualified promise to pay the entire debt, &c., the plaintiff would be entitled to a verdict. The next request was, that the judge would charge the; jury, that a mere acknowledgment of the debt, and an offer to pay something, was not such a promise as would entitle the plaintiff to recover. Upon this point the judge charged that there must be an unqualified promise to pay the entire debt, in express terms, or by fair and just implication from an explicit admission of it as a subsisting debt, for which he acknowledged himself liable, and was willing and intended to pay. We think that the judge’s charge, in this respect, was a sufficient compliance with the request of the counsel. The last request was, that the judge would charge, that the promise proved was not the promise declared upon, the promise declared upon being to pay the whole debt, and the promise alledged to
Edmonds, Edwards and Mitchell, Justices.]
Judgment affirmed.
