Dodge v. Leavitt

There was no admission in the defendant's letter that there was anything due beyond a small sum, and only a conditional offer to pay $107.30. He could make overtures for a settlement to avoid litigation, without being prejudiced thereby. But the admission of an independent fact, made during a treaty of compromise, would be admissible in evidence against him. The offer contained the distinct admission that a small sum only was due. No new promise can be found from his letter. 1 Gr. Ev., s. 192; Exeter Bank v. Sullivan, 6 N.H. 124, 132; Weare v. Chase, 58 N. H[.] 225.

So of the conversation of 1876. The declaration and offer of the defendant are to be taken together. A part cannot be detached from the rest, and a promise inferred. The defendant's admission, that he was willing to pay what he owed, was qualified by the further declaration that he was owing only some $13 or $14. There was no new promise to pay beyond that sum.

In the conversation of 1877 there is an apparent inconsistency in the declaration of the defendant that he would pay what was due, and calculated that he had done so; but he meant that while he was willing to pay what was due, he was satisfied that he had already done so, and therefore was unwilling to pay anything further.

Upon this view of the evidence, the question argued by the plaintiff's counsel, — whether the promise of the defendant to pay what was due would take the case out of the statute so far as to enable the plaintiff to recover what he should prove to be due, as held in Eastman v. Walker,6 N.H. 367, — does not arise, because the promise of the defendant was qualified by the assertion that only a certain sum was due.

There is no evidence of the defendant's acknowledgment of his liability or willingness to pay more than $13 or $14. Whether this sum is included in the $19, found due by the referee, can be determined by agreement or otherwise at the trial term.

Case discharged.

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