66 N.Y. 352 | NY | 1876
The transfer by the defendant to the plaintiff of the note of Betts Gay in April, 1868, was not a satisfaction of the debt owing by him to the plaintiff pro tanto, but was merely a conditional payment which could only result in an actual satisfaction upon the payment of the notes by the makers. (Vail
v. Foster, 4 Com., 312; Whitbeck v. Van Ness, 11 Johns., 409; Noel v. Murray, 3 Kern., 167.) The delivery of the notes was, nevertheless, an acknowledgment at the time of an existing indebtedness, from which the law would imply a promise to pay the residue of the debt so as to suspend the operation of the statute of limitations and give an action for the debt thus admitted at any time within six years thereafter. The statute of limitations preserves the common law rule as to the effect of a partial payment either of the principal or interest, to continue in life or revive the entire debt which would otherwise be barred by the statute of limitations. (Code, § 110.) The delivery of a bill or note as collateral security or as a provisional or conditional payment in part of a debt is equally significant as an acknowledgment by the debtor of his liability for the whole demand, as would *355
be an absolute payment of a like amount, and is within the reason of the rule which makes such payment an acknowledgment of a liability from which a new promise to pay the residue is implied. The act is of the same character and equally unequivocal as a payment in fact. The reasons upon which the general principle referred to is founded are well stated in Van Keuren v.Parmelee (2 Com., 523) and Harper v. Fairley
(
Had this action been brought within six years after the delivery of the notes to the plaintiff, the case would have been clearly within the proviso of the statute, as if an actual payment had been made at that day. The act, and the intention evidenced by it, is the same, whether the payment is absolute or conditional. The question then is, whether the payments to the plaintiff by the makers of the notes transferred, at their maturity, can be regarded as payment by the defendant on those days and thus operate as repeated acknowledgments of the residue of the debt, as it existed on the day of the delivery of the notes. It certainly does not necessarily follow, *356
that because an indebtedness existed in April, the same indebtedness continued and in the same form several months thereafter. Payments may have been made, and the relation of the parties, as debtor and creditor, have been essentially changed during the intervening period. The principle is recognized in all the cases, that a payment, which is to operate as an acknowledgment, must be made by the debtor or his authorized agent; that is, an agent having authority to make a new promise or to perform for the party the very act which is to be the evidence of a new promise. (Harper v. Fairley, supra; FirstNational Bank of Utica v. Ballou, 2 Lans., 120; Aff.,
The order must be affirmed and judgment absolute for defendant.
All concur.
Judgment affirmed.