McLellan v. Allbee , 17 Me. 184 ( 1840 )

The opinion of the Court was drawn up by

Shepley J.

The argument for the plaintiff admits, that the action was not commenced in season to prevent the operation of the statute of limitations. The language proved to have been used by the defendant, Allbee, may be equivalent to a conditional promise to pay, but the other party did not accede to the condition annexed. It is contended, that though not for that reason effectual as a promise, an admission of present indebtedness may be inferred from it.

An acknowledgment of present indebtedness being only evidence from which a promise may be implied, an' unconditional promise cannot be implied from testimony exhibiting the.condition attached to it; so that any implied promise would be as liable to the objection, that it was conditional as the express one.

In the case of Routledge v. Ramsay, 3 Nev. & Peng. 319, the language used was, “ I give the above accounts to you, so you must collect them, and pay yourself and you and I will be clear,” and it was decided, that although this was an acknowledgment of tho debt, yet as it contained merely a promise to pay in a particular manner, no general promise to pay could be implied from it, and that it was not sufficient to take the case out of the statute.

To avoid the statute in this case it would be necessary to infer an acknowledgment, that the debt was due from a conditional promise to pay it: and then to substitute an implied unconditional promise for an express conditional one. And it would require the law to admit an implied promise to be raised, when an express one exists and inconsistent with it.

Exceptions sustained and judgment for defendants.