Rossiter v. Colby , 71 N.H. 386 ( 1902 )

The evidence does not disclose either an unqualified admission of an existing debt which the defendant was liable and willing to pay, or an express promise to pay the debt or to waive the statute. The motion for nonsuit should have been granted. The defendant could make overtures for a settlement to avoid litigation without being prejudiced thereby, although any independent admission made during a treaty of compromise would be binding upon him. Dodge v. Leavitt, 59 N.H. 245. But the defendant's offer to submit the matter in dispute to arbitration, or to compare books and papers, contained no admission of liability. An offer to pay a stipulated sum in settlement, unaccepted, is not evidence of a new promise even to the extent of the sum offered. Dodge v. Leavitt, supra; Batchelder v. Batchelder, 48 N.H. 23; Atwood v. Coburn, 4 N.H. 315, 316. Much less is the unaccepted offer to pay what referees may find to be due evidence of a new promise to pay the whole debt. Hales v. Stevenson, 9 Jur. N.S. 300; Curtis v. Sacramento, 70 Cal. 412. The plaintiff, being unwilling to take the risk of a reference, can claim nothing from the defendant's offer to pay what referees should find to be due. His proposal was merely an offer of compromise, not binding until accepted. "It is well settled that no promise is to be raised by implication, in these cases, against the express declaration of the party at the time, nor beyond what he offers." Exeter Bank v. Sullivan, 6 N.H. 124, 132 Stowell v. Fowler, 59 N.H. 585; Mooar v. Mooar, 69 N.H. 643. If the new promise is upon a contingency, the plaintiff cannot recover without proof of the happening of the event named. Betton v. Cuttis, 11 N.H. 170; Stowell v. Fowler, 59 N.H. 585; Wiggin v. Hodgdon,63 N.H. 39. The plaintiff's refusal to agree to a reference rendered impossible the happening of the event upon which the alleged new promise depended, i.e. the finding by referees that some sum was due. Except in the event of such a finding, there was no promise to pay any sum.

The testimony of Edward Rossiter, that the defendant said, "I will compare books and papers, and if I owe that note I'll pay it," furnishes nothing for the jury. It certainly cannot be construed into an agreement to pay if, upon looking over books and papers, Rossiter came to the conclusion that the defendant owed the note; and as no other person but, the defendant was to participate, the statement merely amounts to an undertaking by the defendant to pay if he came to the conclusion that he owed the note. The statement, "If I owe that note I'll pay it," cannot be separated from the rest of the sentence. The whole must be taken together. There was no evidence of an unqualified promise to pay what was due; and the soundness of the decision in Eastman v. Walker, 6 N.H. 367, referred to but not passed upon in Dodge v. Leavitt, 59 N.H. 245, 246, and in Mooar v. Mooar, 69 N.H. 643, 645, is a question not now presented.

Exception sustained.

All concurred.