Holt v. Gage , 60 N.H. 536 ( 1881 )

In Stanton v. Stanton, 2 N.H. 425, decided in 1822 and in Atwood v. Coburn, 4 N.H. 315, decided in 1828, it was held that a simple acknowledgment of a debt does not take a case out of the statute of limitations; but such acknowledgment is evidence from which a jury may, if there be nothing to rebut it, presume a promise to pay which will take the case out of the statute. These are the only cases in our reports where the doctrine of the early English cases, that a mere acknowledgment of a debt is evidence from which a new promise may be inferred, is upheld. Heylin v. Hastings, 1 Ld. Raym. 421 — S.C., Carth. 470, and Comyns 54; Sparling v. Smith, 1 Ld. Raym. 741; Trueman v. Fenton, Cowp. 548; Anon., 1 Salk. 154; Gofton v. Mill, 2 Vern. 141; Mountstephen v. Brooks, 3 B. Ald. 141.

In Bell v. Morrison, 1 Pet. 362, decided in 1828, it was held, that, when the bar created by the statute of limitations is sought to be removed by proof of a new promise by implication from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt which the party is liable and willing to pay. Subsequent cases in our own reports have followed the decision in Bell v. Morrison. Russell v. Copp, 5 N.H. 154; Bank v. Sullivan, 6 N.H. 124, 135; Blair v. Drew, 6 N.H. 235, 247; Eastman v. Walker, 6 N.H. 367; Kittredge v. Brown, 9 N.H. 377; Ventris v. Shaw, 14 N.H. 422; Jones v. Jones,21 N.H. 222; Whipple v. Stevens, 22 N.H. 219; Douglas v. Elkins,28 N.H. 26; Batchelder v. Batchelder, 48 N.H. 23; Brown v. Latham,58 N.H. 30; Dodge v. Leavitt, 59 N.H. 245; Stowell v. Fowler, 59 N.H. 585; Simpson v. Currier, ante 19; 2 Greenl. Evid., s. 440; 1 Sm. L.C. 323. In Manning v. Wheeler, 13 N.H. 486, it was said, "The expression of a willingness to pay is an important part of the evidence, and cannot be dispensed with."

In Whipple v. Stevens, supra, the surety, before the note was barred by the statute, made a payment upon the note from his own money in the presence of the principal, and it was held that he had a clear right to make the payment, and thereby entitle himself to an action to recover of the principal the amount paid, and that the payment might well be regarded as made with the assent of the principal, implied from his presence and silence, and so being a payment made by the principal was evidence of a new promise.

But when the principal makes a payment in the presence of the surety, he does what his contract with the holder and with the surety requires him to do, and such payment creates no new obligation on the part of the surety to the holder. It discharges pro tanto the principal's obligation to him. The surety is under no obligation to speak when the payment is made, and his silence cannot be construed to his prejudice.

Was there any evidence that the defendant acknowledged an existing debt which he was liable and willing to pay? The plaintiff's own testimony was, that the defendant never said he would pay the note, nor indicated any willingness to pay it; and he does not remember that he ever asked him to pay it, or that he ever promised to pay it. The defendant took no part in the conversation when C. J. Gage told the plaintiff to wait, and he should have his pay. The conversation was not addressed to him, and he may not have heard it. He was then liable, and could not truthfully have denied his liability if he would. The plaintiff did not agree to extend the note, and it does not appear that he said or did anything to give the defendant to understand that the note would be extended. If the defendant was silent when the principal asked the plaintiff to wait, so was the plaintiff. If the defendant was called on to speak, it would seem that the plaintiff was equally under obligation to make known whether or not he would wait as requested. The defendant's legal liability would cease at the expiration of six years from the time the note first became payable. It must be presumed the plaintiff knew this as well as the defendant, and the defendant was under no obligation to remind the plaintiff of a fact which he was equally bound to know. If the defendant is liable because of his silence, it is upon the ground of estoppel; but it does not appear that the plaintiff changed his position in consequence of the defendant's silence. We see nothing in this conversation, or in the other conversations testified to, tending to show an admission on the part of the defendant of a willingness or liability to pay the note.

It is claimed that the defendant, by taking the mortgage, admitted that the note was an existing debt which he was liable and willing to pay. So far as the taking of the mortgage was an admission, it was coextensive merely with his liability, and the effect was not to enlarge it. It would be strange if a surety could not take security without extending his liability a further period of six years. No case has been cited to us to that effect. If the taking of security was an admission by the defendant of his liability as surety, there was nothing in the act itself that shew an intention to extend his liability beyond the time for which he originally became holden.

How far the plaintiff became subrogated to the rights of the defendant under the mortgage, we have no occasion at this time to consider.

If there was any admission of the defendant's liability in the assignment of the mortgage to the bank, it had no reference to a renewal of liability after it should expire by limitation.

Verdict set aside.

STANLEY, J., did not sit: the others concurred.