It was held in the earlier cases of assumpsit, in this state, that while a simple acknowledgment of a debt would not prevent the statute of limitations from operating upon it, such acknowledgment was evidence from which, if there was nothing to rebut it, a jury might find a new promise. If the acknowledgment was accompanied by a condition, limitation, or qualification of any kind, its effect as evidence was modified correspondingly. Stanton v. Stanton, 2 N.H. 425; Buswell v. Roby,3 N.H. 467; Atwood v. Coburn, 4 N.H. 315. Doubts were entertained whether these decisions were in accord with the real intent and purpose of the statute, and it was held that the principle of them could not be applied in actions of debt. Rice v. Wilder, 4 N.H. 336; Exeter Bank v. Sullivan,6 N.H. 124, 133; Downer v. Shaw, 28 N.H. 151. In the later cases it has been uniformly held that a direct and unqualified admission by a debtor, within six years prior to the commencement of the action, of a subsisting debt which he is liable and willing to pay, is sufficient evidence of a new promise, and will prevent the statutory bar to the recovery of the debt. The law on this point has been so frequently and uniformly stated in the foregoing form, substantially, that the statement may be regarded as a well settled rule of law. If the admission be conditional, limited or qualified in any way or to any extent, the new promise will have a like quality, and the statute will operate so far as it may in view of the condition, limitation, or qualification.
In case there is a condition, the creditor must show that it has been fulfilled or complied with, to entitle himself to the implication of a new promise. Russell v. Copp, 5 N.H. 154; Exeter Bank v. Sullivan, 6 N.H. 124,135, 136; Manning v. Wheeler, 13 N.H. 486, 487; Ventris v. Shaw,14 N.H. 422; Butterfield v. Jacobs, 15 N.H. 140; Downer v. Shaw,28 N.H. 151, 153; Dodge v. Leavitt, 59 N.H. 245; Stowell v. Fowler,59 N.H. 585; Holt v. Gage, 60 N.H. 536; Pickering v. Frink, 62 N.H. 342; Gage v. Dudley, 64 N.H. 271, 275; Engel v. Brown, 69 N.H. 183, 184; Mooar v. Mooar, 69 N.H. 643; Rossiter v. Colby, 71 N.H. 386, 387. A partial payment of a promissory note by the maker, under circumstances which show that he understood it was partial only, and which do not indicate an unwillingness on his part to pay the balance, is evidence from which, if there is nothing to control it, a jury should find a new promise. Indorsements upon a note will not be received as evidence of such payments unless shown to be in the handwriting of the maker of the note, or there is other evidence of their genuineness and truthfulness. Exeter Bank v. Sullivan, 6 N.H. 124; Kenniston v. Avery, 16 N.H. 117; Chapman v. Boyce,16 N.H. 237; Jones v. Jones, 21 N.H. 219; Brown v. Latham, 58 N.H. 30; Engel v. Brown, 69 N.H. 183.
According to the plaintiff's testimony, the defendant made a payment of two dollars upon the promissory note in suit within six years of the time when the action was brought, and said, in substance, at the time of making the payment, that it was all she could then pay, — that she would pay more as soon as she could, — would pay just as fast as she could on the note. This testimony, if credited by the jury, would justify them in finding that the defendant understood she was making a partial payment upon a promissory note which she regarded as a subsisting debt that she was liable to pay, and was willing to pay as fast as she could or was able. Her statements relating to losing her boarders, and to the extraordinary expenses to which she was subjected by reason of the trouble in her eyes, tend to prove that her willingness to pay was conditional and depended upon her future pecuniary ability. In effect, she promised that she would make payments on the note as fast as her pecuniary ability would enable her to do so. The later statement in evidence was to the same effect.
In Butterfield v. Jacobs, 15 N.H. 140, 141, the court said: "Where a person, on being applied to for payment of a debt, declares his inability to pay it, but promises to pay it when he shall become able, the happening of the contingency is, in its nature, susceptible of being proved. His pecuniary ability is a
matter of fact, no more indefinite nor uncertain than most facts ordinarily in controversy. Such a promise is clearly conditional, dependent on the happening of a future event. Evidence of the promise and of the pecuniary ability has, therefore, been held sufficient to take a case out of the operation of the statute." The defendant in that case promised that, if he was not arrested in an action upon the note as was threatened, he would go to work at his trade and would pay the debt as fast as he could; and it was held that his language was too uncertain and indefinite to constitute a conditional promise to pay when he should be able, and that the promise was absolute. To the same effect is First Cong. Society v. Miller, 15 N.H. 520. The reasoning by which these decisions were reached is not satisfactory. It is difficult to understand why the principles stated in the foregoing quotation from the opinion in the first case — which are believed to be sound — did not apply to the facts of the cases, and why they should not have governed the decisions. The mere omission of the debtors to expressly state their inability to pay the debts presently does not seem sufficiently to differentiate the cases from the case described in the quotation. While it is possible that the debtors may have had in mind, as the condition of their promises, their convenience in view of their other obligations, or in view of contemplated speculations or purchases, it is highly probable that pecuniary ability to pay the debt was the contingency they intended to attach to their promises, the same as would have been apparent if they had expressly declared their present inability. However this may be, it is quite clear that if the plaintiff's testimony in the present case is believed, the defendant's willingness to pay the balance of the note depended upon her pecuniary ability to pay it. Recent cases fully justify this view. Stowell v. Fowler, 59 N.H. 585; Rossiter v. Colby, 71 N.H. 386. See, also, Atwood v. Coburn, 4 N.H. 315, 318; Betton v. Cutts, 11 N.H. 170; Manning v. Wheeler, 13 N.H. 486. The defendant's exception to the charge of the court must therefore, be sustained.
The testimony introduced by the plaintiff relating to the ante-nuptial agreement between the defendant and her late husband, and the provision of the husband's will in her favor, had a tendency to prove that she possessed pecuniary ability. The nature of the estate was material only as showing the extent of such ability. The testimony was relevant to the issue and competent. It, in connection with the other evidence introduced by the plaintiff, justified the denial of the defendant's motion for a nonsuit. The foregoing views of the law render immaterial the exception to the denial of the defendant's motion to set aside the verdict.
No error is perceived in the ruling relating to the rejection of
the defendant's offer to prove her physical condition prior to November, 1905, or to the ruling relating to the defendant's cross-examination. It would seem, at least, that the court, in the exercise of his discretion, might properly rule as he did.
Exceptions sustained in part: verdict set aside.
All concurred.