If the evidence contained a direct, unqualified admission of a previous subsisting debt, which the defendant was liable and willing to pay, it ought to have been submitted to the jury as tending to prove a new promise; if it did not, the nonsuit was properly ordered. Russell v. Copp,5 N.H. 154; Ventris v. Shaw, 14 N.H. 422.
It is said by the defendant, that the evidence was of an offer to pay a part of the debt upon a condition in full discharge of the whole, which was not accepted or executed. If this is correct, the evidence was incompetent, and there was no error. Atwood v. Coburn, 4 N.H. 315; Batchelder v. Batchelder, 48 N.H. 23. We do not give the evidence this interpretation. The note was the joint debt of the three, and each equitably, as between themselves, should pay one third. The defendant Chase, considering it so, calls upon the agent of the town to reckon the note, so that he can pay his share. He makes no question as to his liability or ability to pay his share; he seems anxious to do it, and have it off his mind. It was a direct, unqualified admission of a previous subsisting debt, to the extent of one third of the amount due on the note, which he was liable and willing to
pay. Yet he was originally liable to pay the entire note, and an unaccepted offer to pay a part of it in full settlement of the whole would not take it out of the statute, even to the extent of the sum offered. The offer, then, of the defendant to pay his share must have been accepted by the plaintiffs, and we think that the evidence reported had some tendency to prove that fact, and should have been submitted to the jury. Webber v. College, 23 Pick. 302.
The evidence did not tend to show an acknowledgment of more than one third of the note. As to the other two thirds, there was no evidence of a new promise.
Nonsuit set aside.
STANLEY, J., did not sit.