Summary
In Wakeman v. Sherman it was said by Judge GARDINER: "The promise must be made to the creditor or some one acting for him, or if made to a third person, must be calculated and intended to influence the action of the creditor.
Summary of this case from DeFreest v. WarnerOpinion
October Term, 1853
Charles O'Conor for the appellant.
James T. Brady for the respondent.
The only question in this case is whether the evidence in support of the replication was sufficient to submit to the jury. Two witnesses were sworn in behalf of the plaintiff, Schenck and Talmadge. The testimony of the first may be laid out of the case, as the conversation which was the subject of it resulted in a proposition upon the part of the defendant to give two notes at six and twelve months (whether for the whole or a part of the demand does not appear), which was not accepted by the plaintiff. Indeed the suit was commenced in February, 1845, within a month of the time of the interview mentioned by this witness.
Talmadge testified to a conversation between him and the defendant occurring three years previous to the one between the parties above mentioned. The substance of the statement of Talmadge was, that the defendant was indebted to him and to the plaintiff, both of whom had signed off their debts under the insolvent act several years before. "That he called upon the defendant on his own account and not on account of the plaintiff;" that he was not authorized and did not address him in behalf of the plaintiff, nor did the defendant authorize the witness to make any statement of their conversation to Wakeman. "The defendant said the debts due Wakeman and me he intended paying, and would pay; that he wanted one year more of successful business to begin to pay them; that the last year's business was worth $40,000 to him." On his cross-examination the witness testifies that "Sherman said he would do something; he conveyed the idea that he felt under obligation to us, and at the end of one year, if successful, he would commence paying these two debts. He felt in honor bound to pay these two debts, and would pay them." Putting the construction upon this declaration most favorable to the plaintiff, it amounts at most to the acknowledgment of a debt, without stating its character or amount, due to the plaintiff, which the defendant was willing to commence paying, in whole or in part, at the end of the following year if his business continued successful. This was not an undertaking to pay when able, which, I infer from his charge, was the opinion of the learned judge at the trial, but a special promise to commence the payment, on the condition of another year's successful business. The defendant was able to pay at the time of the conversation, as he had the previous year made $40,000 according to his own admission.
But there was no evidence given or offered to show the result of the year's business succeeding this conversation. Reputation, and the deeds of some city lots, said to be valuable, sworn to by the witness, was just as consistent with a loss of $10,000 in 1845, as the contrary. The plaintiff, therefore, should have been nonsuited for a failure to prove a fulfilment of the condition upon which the promise by the defendant (if any was made) was contingent.
But in the second place the promise was not made to the plaintiff or his agent, but to a stranger who was not authorized by the defendant to communicate with the plaintiff in any manner on his account. The result of the arrangement between Talmadge and the defendant as to his own debt, was that the latter gave, and the former accepted, a note of $75 for a debt of $94 and upwards. Now, from a conversation to which the parties to it have given this practical construction as to one creditor, the jury were allowed to infer an unconditional promise to pay the plaintiff his entire debt, principal and interest, thus placing him upon a better footing than Talmadge, when it is obvious that the defendant intended no such distinction. The result shows the danger of allowing vague declarations, casually uttered to a stranger, to be made the foundation of a new promise, when it is certain that the defendant knew that the person with whom he was communicating could neither make nor accept of any proposition in behalf of the absent creditor. I had occasion the last term, in the case of Bloodgood v. Bruen (4 Seld., 362), to consider this question, and then came to the conclusion that an acknowledgment under such circumstances would not avoid the bar of the statute of limitations. It is unnecessary to repeat what was then said as to the English doctrine upon this subject, and the reasons upon which it is founded. The rule with us, as I am inclined to think, is, that to revive a demand thus barred, there must be an express promise to pay, either absolute or conditional, or an acknowledgment of the debt as subsisting, made under such circumstances that such a promise may be fairly implied. (1 Peters, 362; 1 Cow., 531.) The promise must be made to the creditor or some one acting for him, or if made to a third person must be calculated and intended to influence the action of the creditor. (2 Story's Eq., § 1521, a.)
In the present case there was neither a promise or acknowledgment made to the plaintiff by the defendant, nor a proposition submitted through a third person for his consideration and acceptance. On the contrary, the witness Talmadge expressly disclaimed all authority to act either for the creditor or the debtor.
I think for this reason also, that the judgment of the supreme court should be reversed and a new trial ordered with costs to abide the event.
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; 9 Barr, 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. (6 Hill, 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, 7 Johns., 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.