Love v. Hackett , 6 Ga. 486 ( 1849 )

By the Court.

Nisbet, J.

delivering the opinion.

At the time when the alleged promise of the defendant, Lump _ kin, was made, a bill was pending, by the administrator of Ware, who was principal on tile note sued upon, to marshal the assets of his estate. The promise, relied upon by the plaintiff as a reply to the Statute of Limitations, was made in reference to this bill. The suit was brought after the Statute bar had taken effect, and before the conditions, (to wit the termination of the bill to marshal the assets, &c.,) had been fulfilled; but at the time of the trial the conditions had been fulfilled ; that is, the bill was then disposed of and the amount allowed upon the plaintiff’s claim had been paid. Upon the trial, the Court held, that the reply to the Statute was not sufficient, and non-suited the plaintiff, and we are asked to review that decision.

[1.] The evidence as to what was the promise of the defendant, being somewhat in conflict, it ought to have been left to the Jury to find what it was. Whilst it is with the Court to determine what will amount in law to a sufficient reply to tire Statute, it is for the Jury to determine what it was. Regarding the question as before us, however, as the presiding Judge entertained it, upon a motion to non-suit the plaintiff, there seems to us no altei'native but to take the promise as proven in the first conversation ; the witness swearing that that was the promise, notwithstanding the subsequent explanations of the defendant,

[2.] What, now, is that promise? It is a promise to pay the balance of the note when the bill to marshal the assets of Ware is determined, and the amount allowed to it by the decree on that bill is paid. The view we take of this matter is this, to-wit: if the condition, at the trial, was fulfilled, it was then an absolute, unconditional promise to pay what was then due on the noie. The fulfilling of the condition relates back to the time when the promise was made, and makes it, at the moment of fulfilment, an absolute, unconditional promise to pay. It was not necessary that the fulfilment of the condition should have taken place before the suit was brought. It Was necessary that the plaintiff should prove that fact before he could remove the statutory bar — that he did do in this case. A promise which, in law, will be sufficient to take a case out of the Statute, will be a sufficient reply, even's though made after suit brought. Yea vs. Fowraker, 2 Burrow, 1099, Danforth vs. Culver, 11 Johns. R. 146. 5 Ga. Reports, 486.

The plaintiff having proven upon the trial, the promise made before the Statute took effect, with the conditions, and having at the trial also proven that the conditions had been fulfilled, to wit: that the bill to marshal the assets of the estate of Ware, had been determined, and the amount decreed to the plaintiff’s claim had been paid, the promise then stood as an absolute promise to pay what was then due on the note, and was unquestionably a sufficient reply to the plea of the defendant. See Angel on Limitations, 249 to 260. Bell vs. Morrison, 1 Peters’ R. 351, and the numerous authorities there quoted.

Counsel for the defendant insisted that the plaintiff was not entitled to recover, because, instead of suing upon the original note, he should have brought his action on the new promise. The question thus raised in the argument, was not made in the Court below, and the presiding Judge did not pass upon it. It is not, therefore, made upon this record, and we express no opinion upon it. See Administrator of John Martin vs. Broach, 6 Ga. Reps. ante, page 2.

Let the judgment of the Court below be reversed.