Wakeman v. . Sherman , 9 N.Y. 85 ( 1853 )

Whatever opinion may be entertained in regard to the other questions in this case, I think it is very clear that the court below erred in allowing the plaintiff to give in evidence the defendant's title to certain real estate. The plaintiff did not prove any promise of the defendant to pay when able to do so, and this evidence could only have been relevant under such a state of the case. (Tompkins v. Gardner Brown, 1 Denio, 247; 9Barr, Penn. R., 412, 413; 11 Wheat., 309; 6 B. C., 603.) The only evidence of a conditional promise is that of Talmadge, and the condition was not ability to pay, but another year's successful business. The defendant might receive a fortune by gift or inheritance and not be liable upon such a promise. There is no principle upon which this evidence was admissible, and as it was calculated in its tendency to prejudice the defendant in the minds of the jury, or at least to influence their deliberations, the verdict should not be permitted to stand. (6Hill, 296; see also note "b," and cases.) The plaintiff utterly failed to show the fulfilment of the condition upon which this promise was made, and the law is well settled that he was not entitled to recover without it. (Scouton v. Eislord, 7Johns., 36; Bush v. Barnard, 8 Johns., 407; Wait v.Morris, 6 Wend., 394.) I do not think that, taking the whole of the plaintiff's evidence, it showed such an admission of a debt due and a willingness to pay as took the case out of the operation of the statute of limitations. (4 Barb., 174; 6 id., 586; 9 Wend., 297; 1 Hill, 537; 11 Wheat., 216; 2 Comst., 531; 15 Wend., 284; 1 Peters, 362.)

The judgment of the court below should should be reversed and a new trial granted.

DENIO, J., did not hear the argument.

All the other judges concurring.

Judgment reversed and new trial ordered.