This was a writ of error, brought by the defendants in the court below, to reverse a judgment rendered against them in that court.
The declaration was in common form, in assumpsit, counting upon a promissory note, and demanding 100 dollars, damages. To this, there was a demurrer and joinder in demurrer. The writing counted upon, and recited in the declaration, was of the following tenor, vis. “ Due John Allen ninety-four dollars, 91 cents. Litchfield, August 30th, 1808.
Joseph L. Smith,
Seth P. Beers.”
The court below, adjudged the declaration to be sufficient, and rendered judgment for the plaintiff, to recover 111 dollars, 99 cents, damages.
On inspection of the record, it appears, that judgment was
Rut still, the question arises, whether this cause shall be remanded to the Superior Court ? The decision of this question depends upon the sufficiency or insufficiency of the plaintiff's declaration : Recausc, if the instrument on which the action is brought, and which is recited in the declaration, will not sustain it, it will be useless to send the cause back for farther trial.
On this subject, in my view, it is very clear, that where a writing contains nothing more than a bare acknowledgment of a debt, it does not, in legal construction, import an express promise to pay. It would not appear, from such a writing, that the parties intended the debt should be paid. Their meaning might be, in such case, merely to settle their accounts, in writing, with a view to further dealings.
But where a writing, imports not only the acknowledgment of a debt, but an agreement to pay it; this amount? to an express contract.
Prom the writing in question, it is perfectly manifest, that the debt acknow ledged to be due, was to be paid on demand, as fully, as if the words “ to be paid,” or, “ which we promise to pay,” had been inserted next before the words “ on demand.”
I think, therefore, that the declaration is sufficient; and that the cause ought to be remanded for further proceedings.
Judgment reversed, and the cause remanded.