Tompkins v. Brown

May 15, 1845
Versions:1 Denio 247
By the Court, Beardsley, J.

The court held that a promise to pay when able, wаs sufficient to avoid a plea of the statute of limitаtions, without giving any evidence of the pecu*249niary cоndition of the party who made the promise. This xvas ‍‌‌‌​​​​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍erroneous; the ability to pay should have been shown. (Tanner v. Smart, 6 Barn. & Cress. 603; A'Court v. Cross, 3 Bing. 329: Scales v. Jacob, id. 638; Ayton v. Bolt, 4 id. 105; Haydon v. Williams, 7 id. 163; Bush v. Barnard, 8 John. 407; Wetzell v. Bussard, 11 Wheat. 309; 2 Phil. Ev. 138, 139; Stephens' N. P. 249, 2061; Leigh's N. P. 1253, 1273, 4; Chit. on Cont. 821, 827; Bal. on Lim. (by Tillinghast) 188, 189, 546.)

In Scales v. Jacob, already cited, the promise relied on was made, as in this case, before the statute had run against the original cause of action;. and, although the promise was, in its • terms, conditional, it was argued that the plaintiff could recover upon it xvithout proof of performancé of the condition, for the reason that the nexv promise was made before the original cause of action had been barred by the' statute. Upon this point the judges of the English cоmmon pleas xvere equally divided. Best, C. J. thus expressed himself upon it: “ The plaintiff then in this suit has no cause of -actiоn after the expiration of the six years. Before the expiration of the six years, ‍‌‌‌​​​​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍it is true a conditional рromise was made, but that, if relied on, must be taken subject tо the condition. In none of the cases has any distinction been-made as to the time of the promise, xvhethеr before or after the six years; but it is clear, that aftеr the six years the plaintiff has no cause of actiоn except on the new promise, and that being cоnditional, the condition attached to it must be observed.” This xvas in 1826, and it xvas folloxved by the case of Tanner v. Smart, cited befоre, xvhich xvas decided in 1827 by the court of king’s bench. The action was founded on a promissory note dated the 19th оf January 1816, payable on the 30th of November then next. “ The plaintiff proved that in 1819 the note xvas presented to the defendant, and payment of it demanded ; and that the defendant said, I cannot pay ‍‌‌‌​​​​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍the debt at present, but I xxnll pay it as soon as I can. There xvas no proof of any ability on the part of the defendant to pay the debt.”

In this case therefore, as in Scales v. Jacob, the promise was *250made before the expiration of six years, but the distinction between such a promise and one аfter the expiration of that period was not advеrted to. The court however held, and it does not aрpear that either of the judges dissented, that the plaintiff could not recover, as it had not been provеd that the defendant was of sufficient" ability to pay the dеmand. Here then was a direct adjudication upon the point, that a conditional promise, although made before the statute of limitations had run against the original demand, will not authorize a recovery without showing a performance of the condition. In the language of Chief Justice Best, such a promise, “ if relied on, must be taken subject to the condition.” ‍‌‌‌​​​​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍And this, notwithstanding the case of Scales v. Jacob, is the settled doctrine of the English common pleas, as may be-seen in the case of Haydon v. Williams, decided in 1830, and which has been cited.

The court erred in holding that a conditional promise would avoid the statute of limitations without ‍‌‌‌​​​​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍proving a performance of the condition, and for this error the judgment should be reversed.

Judgment reversed.