Sibley v. Lumbert , 30 Me. 253 ( 1849 )

Wells, J.

■— The words in pencil mark, on the face of two of the notes in suit, “ Property of Mrs. Sibley,” would not necessarily indicate that they were her property, at the time she was offered as a witness. They might be perfectly consistent with her ownership at a prior time.

She was properly admitted as a witness. Her testimony shows, that she was once the owner of all three of the notes, but had transferred her interest in them to the plaintiff, before the commencement of the suit.

While she was the owner of the notes, and within six years from the commencement of the action, Lumbert made a payment. to her of ten dollars, and a chaise valued at two hundred and fifty dollars, in part satisfaction of the notes. No direction was made by him, upon which of the notes he would have the payments applied, nor were they indorsed upon either of the notes.

The other defendant having been defaulted, no question arises as to his liability.

The payments made by Lumbert create a new promise by him, and remove the bar arising from the statute of limitations.

Chap. 146, $ 19, of the Revised Statutes, requires the acknowledgment or promise, as evidence of a new or continuing contract, to be in writing. But the twenty-third section of the same chapter says, “ nothing contained in the preceding four sections shall alter, take away, or lessen the effect of payment of any principal or interest, made by any person,” &c.

While a mere acknowledgment or promise must be in writing to render it valid, a new promise is implied from the fact of a partial payment of principal or interest. •

Nor has the latter section pointed out the mode of proof, excepting that an indorsement or memorandum, made by the person to whom a payment shall be made, is not sufficient proof of. it, so as to take the case out of the operation of the statute. It has left the fact of payment to be established in the same manner, as would have been required before the statute was passed.

It has been held in Massachusetts, upon the construction of a similar statute, that a verbal admission, of the party to be charged, of a partial payment, may be shown to avoid the effect of the limitation. Williams v. Gridley, 9 Metc. 482.

In this case there is direct proof of the payments which were made, and a default must be entered.