4 Barb. 168 | N.Y. Sup. Ct. | 1848
The following questions were raised on the argument of this cause, viz. 1. Whether the defendant’s promise to pay the note was absolute, or conditional; 2. If conditional, whether it should not have been specially replied ; 3. Whether the promise, as proved, ivas sufficient to take the note out of the statute of limitations ; and if conditional, whether it was available for this purpose, without showing the performance of the condition ; 4. Whether the plaintiffs could avail themselves of the promise, in this case, it not having been made either to them, or their agent.
To revive a debt barred by the statute of limitations, “ there must be an express promise, or an acknowledgment of a present indebtedness; a subsisting liability, and a willingness to pay.” (Allen v. Webster, 15 Wend. 259, per Savage, Ch. J. 15 Id. 306. Roosevelt v. Mack, 6 John. Ch. 290. Bell v. Morrison, 1 Peters, 351, 362.) “If there be no express promise, and one is to be raised by implication of law, from an acknowledgment, such acknowledgment ought to contain an unqualified and direct admission of a previous, subsisting debt, which the party is liable and willing to pay.” (1 Peters’ U. S. Rep. 362, per Story, J. 3 Wend. 190.) An acknowledgment which will authorize a jury to find a promise to pay, must be explicit and unconditional; and any suggestion which qualifies it, or repels the idea of a promise to pay, destroys the effect of what is said. (Cocks v. Weeks, 7 Hill, 46, Beardsley, J.) In Cocks v. Weeks a promise of the defendant, to pay the note, (on which the suit was brought,) as soon as he conveniently could, was held to be a conditional promise, and equivalent to an engagement to pay when able. And it was further held, that to make such promise effective, the defendant’s ability to pay must be shown. (7 Hill, 46.) The promise in the present case was in these words: “I owe the plaintiffs about $700 and intend to arrange my business and pay them this fall or winter, as soon as I can.” It seems
A promise to pay money at a future day, is just as absolute and unconditional, as a promise to pay immediately, or on demand. (1 Peters, 371.) I am aware that the witness Smith," on his cross-examination, does not give the promise or acknowledgment of the defendant in the same words as he did on his direct examination. On his cross-examination he says, that the defendant, in answer to the remark of witness that he must settle the debt at Kingston, replied that he would, and intended to “ that fall or winter, or as soon as he could arrange his business so to do.” This acknowledgment, standing alone without other words, is doubtless conditional. It is a promise, by the defendant, to pay as soon as he could arrange his business so to do, or after his business had been arranged. And if there was no other promise or acknowledgment, before the plaintiffs could recover they would be obliged to show the performance of the condition; viz. that the defendant’s business had been so arranged as to enable him to pay the plaintiffs’ demand; or, in other words, to show the defendant’s ability to pay. But the whole evidence of the witness Smith, given both on his direct and cross-examination, was submitted to the referees. All his testimony as to the promise or acknowledgment of the defendant was received, under the pleadings. No objection was made, either to its admissibility under the declaration and replication, or as to its sufficiency to sustain the cause of action
Where a debt barred by the statute of limitations is sought to be revived by an acknowledgment-, the acknowledgment is to be submitted to a jury as evidence of a néw promise; and the jury are to find from the evidence, (if it be sufficient,) such promise. (Sands v. Gelston, 15 John. 520. Johnson v. Beardsley, Id. 4. Cocks v. Weeks, 7 Hill, 46. Bell v. Morrison, 1 Peters’ Rep. 362. Moore v. Bank of Columbia, 6 Id. 92. Dodson v. Mackey, 4 Nev. & Man. 327. Roosevelt v. Mack, 6 John. Ch. Rep. 290.) In Haylin v. Hastings, (Comb. 34,) cited in Tanner v. Smith, (6 Barn. & Cress. 603,) Holt, C. J. with the ten judges at Sergeant’s Inn, including the king’s bench judges, agreed that an acknowledgment of a debt, barred by the stat
Upon the authority of these cases it was competent for the referees to decide, as a matter of fact, upon the evidence, whether the defendant’s acknowledgment was conditional or unconditional, and whether it was sufficient to authorize them to ¡find a promise *o pay. And as the referees have passed upon these'questions as matters of fact, and as there is no decided preponderance of the evidence in favor of the defendant, the ¡report of the referees cannot be set aside, upon the ground that 'it is against the weight of evidence.
Should the new promise have been declared upon, or replied, specially ? A distinction has long been recognized between
The contract of an infant, not for necessaries, rests on the same principle as a contract discharged under the bankrupt or insolvent laws. The infant’s contract is not binding in law, upon him; and it cannot become obligatory except by a new promise or ratification by the infant after he comes of age. The new promise or ratification must be equivalent to a new contract. A bare acknowledgment is not sufficient. (15 John. 519.) It is the new promise or ratification which creates the contract on which the suit must be sustained against the infant. Hence, as in case of a debt discharged under the bankrupt or insolvent laws, although the declaration is on the original contract, the plaintiff must reply specially the new promise or ratification by the infant after he came of age. (1 Chit. Pl. 581. Goodsell v. Myers, 3 Wend. 481. Bigelow v. Grannis, 2 Hill, 120. 2 Kent’s Com. 234 to 239, 2d ed. Zouch v. Parsons, 3 Bur. 1804, per Lord Mansfield.)
In case of a debt barred by the statute of limitations, where the subsequent promise to pay is absolute and unconditional, or the acknowledgment is explicit and unqualified, all the cases agree that the replication may be a general denial of the plea of non-assumpsit or actio non accrevit infra sex anuos; and
No distinction is taken, in any of the cases, between the case of a conditional promise made before, and one made after, the statute of limitations has run against the original demand, in relation to the necessity of replying the same specially. In Tanner v. Smart, (6 Bar. & Cress. 653,) and in Haydon v. Williams, (7 Bing. 162,) the conditional promise was made within six years after the original cause of action accrued ; and this
But it is not necessary to dispose definitively of the question whether a subsequent conditional promise of payment, where the condition has been satisfied, must he replied specially; because I have come to the conclusion, as heretofore stated, that the referees have found the subsequent promise, in this case, to be an absolute and not a conditional promise.
The only other question which remains to be considered is, whether the plaintiffs can avail themselves of the promise or acknowledgment in this case, it not having been made either to them or their agent. The distinction between debts barred by the statute of limitations and debts discharged under the bankrupt and insolvent laws, has a bearing upon this question. In the case of debts discharged under the bankrupt and insolvent laws, the debt being in law extinct, all the ingredients of a complete agreement are necessary to enable the creditor to recover the amount of his original demand. And no agreement is complete until the minds of the contracting parties meet. Hence in this class of cases it is necessary that the new promise should be made to the creditor, in person, or to his agent. But in the case of debts barred by the statute of limitations, as the original debt remains, and only the remedy is taken away, and as an acknowledgment is sufficient to revive, or restore, the remedy, and remove the bar, and as no new contract is necessary to enable the creditor to collect his original demand, the promise or acknowledgment is equally operative and effective, whether made to a stranger, or to the creditor himself, or his
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An acknowledgment or admission, by the debtor, of a present subsisting liability, and of a willingness to pay, like all. other admissions of a subsisting indebtedness, is as effective when made to, or in the presence of, a third person, as when made to the creditor himself, or to his agent. In Soulden v. Van Rensselaer, (9 Wend. 297,) Nelson, J. says that “ the statute of limitations only operates upon the remedy, by affording a presumption of payment, and hence the acknowledgment of the existence of the debt revives the debt, by removing the presumption; and upon this ground it is obviously unimportant to whom the acknowledgment is made, and so are the authorities.”
In McCrea v. Purmort, (16 Wend. 477,) Cowen, J. says— “ The admission of a debt is available to take it out of the statute of limitations, whether that admission be express or tacit ; whether made to the party, or a stranger; and it may be implied from the conduct of the party.” The proposition that the promise or acknowledgment, which revives a debt barred by the statute of limitations, or restores the remedy for the recovery of such debt, may be made to a stranger as well as to the party, will be found adjudged or conceded in the following cases. Bigelow v. Grannis, (2 Hill, 120.) Stafford v. Bacon, (1 Id. 537.) Oliver v. Gray, (1 Har. & Gill, 204.) Peters v. Brown, (4 Esp. 46.)- Halliday v. Ward, (3 Camp. N. P. Rep. 31.) Lawrence v. Hopkins, (12 John. 288.) Moore v. Viele, (4 Wend. 422.) Fearn v. Lewis, (6 Bing. 349;) S. C. (4 Car. & Payne, 173.) 2 Phil. Ev. 142, Cowen & Hill’s ed. Clark v. Hougham, (2 Bar. & Cress. 153.) Mount Stephen v. Brooks, (3 Bar. & Ald. 141.) Whitney v. Bigelow, (4 Pick. 110.) St. John v. Garrow, (4 Porter, 223.)
The motion to set aside the report of the referees must be denied with costs.