Berghaus v. Calhoun , 6 Watts 219 ( 1837 )

The opinion of the Court was delivered by

Gibson, C. J.

An acknowledgment of indebtedness, though not itself a promise, is held to be evidence of it. In this, we see a remnant of that j uchcial repugnance to the statute of limitations, which had at one time nearly abolished it. It follows neither necessarily nor naturally, that the acknowledged existence of a debt, barred only so far as regards the means of its enforcement, implies a promise to pay it; and an express promise it is not pretended to be. It is but the concession of a fact, which the plaintiff might prove as effectively by any other evidence; for it is a postulate of the doctrine that the statute, which takes away the remedy, leaves the existence of the duty untouched. Were the fact of indebtedness, therefore, the efficient cause of the promise, the statute would be a dead letter; for the plaintiff would make out a case to recover in consistence with it by making out his original demand^ But a naked duty or moral obligation, though a sufficient consideration for an express promise, raises no promise by implication of law; consequently, though we might accurately suppose the recognition of a, UoU-t -to bo ovidesaoo o£ consideration, we might not, agreeably to admitted analogies, suppose it to be evidence of a promise, because it is equally consistent with a declared determination not to pay. It is established, however, by decisions which we dare not oijo.Ko, Uio-t i* 1-a.a.y, by log-iil iatonflmp.nt be evidence of a promise; yet to avoid the uncertainty and insensible encroachment on the statute that would ensue did we attempt to shape our course by the lights and shadows of former precedents, we may require the acknowledgment of the demand, as a debt of legal obligation, to be so distinct and palpable in its extent and form, as to preclude hesitation. What evidence have we, then, of acknowledgment? At first the defendant told the plaintiff’s agent that the demand was of such long standing that he had almost forgotten it; but that he would call on the plaintiff himself. There certainly was no direct acknowledgment in that; and the time is gone by for fixing a debtor with every inference of admitted obligation which he did not specially repel. Being urged a second time, he said it was impossible for him to pay then, but he would call on the plaintiff in two or three weeks, “and give him all the satisfaction he could desire.” As to what? Undoubtedly as to the course he might subsequently adopt. To say it was not possible to pay then, was not to say, except by implication, that it would be possible or requisite to pay thereafter; and the promise to give the plaintiff satisfaction is more indefinite still. If unqualified payment were meant,- it would have been as easy, and more natural, to call it by its name; but such a promise looks more like an engagement to compromise, or give convincing reasons why there should not be payment at all. It was manifestly intended for a genteel put-off, reserving the question of ultimate liability, as before, for further consideration. This is the pinch of the case; for being pressed a third time, the defendant set the plaintiff at open defiance: and this is all we have for evidence of explicit and unqualified assumption. That he did not dispute the validity of the noté, adds not a grain to the weight of it; for no man is held to make an express promise by holding his tongue. There was not, therefore, that straight-forward admission of legal indebtedness which is held to be competent evidence of a new promise.

Judgment reversed, and a venire facias de novo awarded,