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Insufficient Acknowledgment or Promise.

§ 1615. An offer to pay part of a note in satisfaction of the whole, not accepted by the holder, is not a sufficient promise.302 So, too, an offer to allow the amount of a draft in 303 compromise; or a statement

course, this includes the note that I jointly signed with B. You are aware you have £25 to my credit." Godwin v. Culley, 4 Hurl. & N. 373. Or, “I will try and pay you a little at a time if you will let me. I am anxious to get out of your debt. I will endeavor to send you a little next week." Lee v. Wilmot, L. R. 1 Exch. 364. Or, "I hope to be at H. soon, when I trust everything will be arranged with A. agreeable to her wishes." Edmonds v. Goater, 15 Beav. 415. Or, "I cannot send you the £20. I have no money by me now, nor shall I have till after the fair. Your better way will be to give up that bill and draw another for £30, the balance of the account, which shall be honored when due.” Dabbs v. Humphrey, 4 Moore & S. 285, 10 Bing. 446. Or, "By next month I shall have my bankers' account here, and I shall remit the sum due to you in a draft on them." Lang v. Mackenzie, 4 Car. & P. 463. Or, "The old account has not escaped our memory, and as soon as we can get our affairs arranged we will see you are paid." Chasemore v. Turner, L. R. 10 Q. B. 500. Or, “I have note in bank that should be renewed, and I have the money to do so, but have not time. If you could send the old note to A., with statement, he would receive the money and a new note and forward to you." Brown v. State Bank, 10 Ark. 134. Or saying he could not pay, but would pay by installments. Wilby v. Elgee, L. R. 10 C. P. 497. Or regretting that he "cannot remit," and referring the holder to his agent. Buffington v. Davis, 33 Md. 511. Or saying he had signed, and in the end thought he should have to pay, and "that enough had been paid to pay the debt if it had been presented when it should have been." Phelps v. Williamson, 26 Vt. 230. Or saying he thought he "had settled. If not, I am willing to do so now." Shaw v. Lambert, 14 App. Div. 265, 43 N. Y. Supp. 470. So, a letter promising "to pay the balance," but not specifying the amount, will support a recovery of nominal damages. Dickinson v. Hatfield, 1 Moody & R. 141, 5 Car. & P. 46. See, too, Byles, Bills, 354; Chit. Bills, 689; Dodson v. Mackey, 4 Nev. & M. 327.

302 Batchelder v. Batchelder, 48 N. H. 23. Or an agreement to give in satisfaction a smaller note, afterwards offered and refused. Smith v. Eastman, 3 Cush. (Mass.) 355. Or to pay in Confederate currency. Simonton v. Clark, 65 N. C. 525. So, a general offer in the petition of a bankrupt to assign for the benefit of creditors. Everett v. Robertson, 1 El. & El. 16.

303 Whitney v. Reese, 11 Minn. 138 (Gil. 87). So, an offer to compromise, saying the note could not be enforced at law, and he would never pay because it was an unjust debt. Laurence v. Hopkins, 13 Johns. (N. Y.) 288. But a written proposal of compromise is a sufficient acknowledgment in Louisiana. Kohn v. Davidson, 23 La. Ann. 467.

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that, "if you produce any notes against me, I will pay them," coupled with an admission that certain notes then handed to him were still due.3 304 So, it is not a sufficient acknowledgment to prove an account against the estate of an intestate, and credit him with the amount of the note in question; or to consent that the holder may receive a dividend from the estate of another maker, and "not prejudice your claim upon me for the same debt"; or to admit that the payee complained because the maker did not pay more.307

305

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And where an administrator put on his inventory a duebill given by himself to the deceased, which was barred by the statute, it was held that this was not a sufficient promise to take it out of the statute.308 So, it is not a sufficient acknowledgment to include a note in the schedule of the maker's creditors in insolvency; 309 or in an unsigned schedule of debts made for his private use. 310 In like manner, an ambiguous statement in a letter will not amount to an acknowledgment or promise. 311

Verbal and Conditional Promises.

§ 1616. It has been held that the new promise could not be proved by a verbal or written contract without the signature of the prom312 and this is now established in Great Britain by statute.313

isor;

304 Norton v. Colby, 52 Ill. 198.

305 Smith v. Talbot, 11 Ark. 666.

306 Cockrill v. Sparkes, 1 Hurl. & C. 699.

307 Anderson v. Robertson, 24 Miss. 389.

808 Black v. White, 13 S. C. 37.

309 Roscoe v. Hale, 7 Gray (Mass.) 274; Hidden v. Cozzens, 2 R. I. 401: Smith v. Palfrey, 28 La. Ann. 615.

310 Wellman v. Southard, 30 Me. 425.

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311 E. g. saying, "I am sorry I cannot do anything for you at present, but shall remember you as soon as possible." Gemmell v. Colton, 6 U. C. C. P. 57. Or, “I am going to A. to-morrow and will send $50, which is all I can spare at present." Eckford v. Evans, 56 Miss. 18. Or, "I would thank you to send me a statement, ** * if I should not be able to visit you soon. I will write again." Gibson v. Grosvenor, 4 Gray (Mass.) 606. So, if the maker's administrator writes, "An arrangement will soon be made to pay the note. I calculate, and always calculated, to pay it." Oakes v. Mitchell, 15 Me. 360. 312 Byles, Bills, 361; Willis v. Newham, 3 Younge & J. 518; Baildon v. Walton, 1 Exch. 632.

313 Byles, Bills, 361; Chit. Bills, 688; 2 Pars. Notes & B. 631; 9 Geo. IV. c. 14; Irving v. Veitch, 3 Mees. & W. 98; Hyde v. Johnson, 2 Bing. N. C. 776, 3

In like manner, it is provided in many of the United States that an acknowledgment or promise, in order to bar the statute of limitations or be admissible as evidence of a new contract, must be in writing, and signed by the party to be bound.314 Before the passage of these acts, however, a verbal promise was sufficient.315

The acknowledgment or promise to pay must not be conditional; 316 or, if conditional, the condition must be shown to have been per

Scott, 289. Although it was made before January 1, 1829, when the act went into effect. Towler v. Chatterton, 6 Bing. 258, 3 Moore & P. 619; Hilliard v. Lenard, Moody & M. 297.

314 ALABAMA (Code, § 2628); ARKANSAS (Sand. & H. Dig. § 4837); CALIFORNIA (Code, Civ. Proc. § 360); GEORGIA (Civ. Code, § 3788), but a credit indorsed on a note by a debtor, or any other written acknowledgment, is equal to a new promise (section 3789); ILLINOIS (Hurd's Rev. St. c. 83, $16); INDIANA (Horner's Rev. St. § 301); IOWA (Code, § 3456); KANSAS Gen. St. c. 95, § 18); LOUISIANA (Rev. Civ. Code, art. 2278); MAINE (Rev. St. c. 81. § 97); MASSACHUSETTS (Pub. St. c. 197, § 15); MICHIGAN (2 How. Ann. St. § 8725); MINNESOTA (Gen. St. § 5154); MISSISSIPPI (Ann. Code. § 2757), Lamkin v. Nye, 43 Miss. 241; MISSOURI (Rev. St. § 6793), Blackburn v. Jackson, 26 Mo. 308; NEBRASKA (Comp. St. § 5612); NEVADA (Gen. St. § 3660); NEW JERSEY (2 Gen. St. p. 1976, § 17), Parker v. Butterworth, 46 N. J. Law, 244; NEW YORK (Code Civ. Proc. § 395); NORTH CAROLINA (Code, § 172), especially after the note is already barred, Pool v. Bledsoe, 85 N. C. 1; OHIO (Bates' Ann. St. § 4992); OREGON (Code Civ. Proc. c. 24); SOUTH CAROLINA (Code Civ. Proc. § 131); TEXAS (Rev. St. art. 3219): VERMONT (V. S. § 1215); VIRGINIA (Code, § 2922); WEST VIRGINIA (Code, c. 104, § 8); WISCONSIN (Sanb. & B. Ann. St. § 4243). And an acknowledgment in writing, not signed or delivered, is not sufficient. Green V. Goble, 7 Kan. 297. But a verbal promise not to plead the statute may be enforced to prevent fraud on the promisor's part. Cecil v. Henderson, 121 N. C. 244, 28 S. E. 481.

*15 Horner v. Starkey, 27 Ill. 13; Sennott v. Horner, 30 Ill. 429; Carothers V. Hurley, 41 Miss. 71, before the Code of 1857. And a promise to "settle" the note at a future day was sufficient without production of the note, if there was no misunderstanding and the claim was presented and ready to be exhibited. Brody v. Doherty, 30 Miss. 40. But the former Mississippi statute required the acknowledgment to be made on presentation of the note. Foute v. Bacon, 24 Miss. 156. Or the promise to be made in writing and signed. Briscoe v. Anketell, 28 Miss. 361. And it was held to be sufficient in Texas if the maker said he was willing to pay a note which was already barred. McDonald v. Grey, 29 Tex. 80.

216 Sweet v. Franklin, 7 R. I. 356.

formed. 31 317 Thus, if the maker of a note said it was an honest debt, and he would pay it when he got able, it would be a sufficient bar on proof of his ability to pay.318 So, in Illinois, where the maker gave a verbal promise to pay when he could "make a raise, if the payee would wait awhile." 319 And an acknowledgment that a note is due and unpaid, with a promise to pay, if credited by the holder's firm with certain rents, is sufficient.320 But a written promise to pay at a certain time, unless he "should find a receipt in the meanwhile," has been held not to be so. 321

Promise by Agent-Executor-Surety.

§ 1617. The acknowledgment or promise may be made by an agent, but the holder cannot act as agent for the maker.322 A wife may, however, bind her husband as agent by such promise."

323

317 Byles, Bills, 353; Chit. Bills, 689; Tanner v. Smart, 6 Barn. & C. 603, 9 Dowl. & R. 549; Kennett v. Milbank, 8 Bing. 38; 1 Moore & S. 102: Linsell v. Bonsor, 2 Bing. N. C. 241, 2 Scott, 399; Wakeman v. Sherman, 9 N. Y. 85; Parker v. Butterworth, 46 N. J. Law, 244; Guy v. Tams, 6 Gill (Md.) 82; Porter v. Hill, 4 Me. 41; Shaw v. Newell, 1 R. I. 488; Farmers' Bank of Virginia v. Clarke, 4 Leigh (Va.) 603; Deshon v. Eaton, 4 Me. 413.

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318 Dean v. Hewit, 5 Wend. (N. Y.) 257. So, a promise to pay "as soon as convenient." Edmunds v. Downes, 2 Cromp. & M. 459, 4 Tyrw. 173. Or “as soon as I can." Tanner v. Smart, 6 Barn. & C. 603, 9 Dowl. & R. 549; v. Jacob, 3 Bing. 638. Or a request to "allow it to rest until I am in condition to liquidate it." Parker v. Butterworth, 46 N. J. Law, 244. promise to pay "when able" has been held not to be sufficient. Wilcox v. Williams, 5 Nev. 206. So, a statement that he had sufficient assets, and expected to realize, and would pay out of such assets if he had time. Wells v. Hill, 118 N. C. 900, 24 S. E. 771. So, where the debtor said he desired to pay when able, and the claim was already barred, and was not exhibited to him at the time. Adams v. Torry's Ex'rs, 26 Miss. 499. And see § 111, supra.

319 Horner v. Starkey, 27 Ill. 13; Sennott v. Horner, 30 Ill. 429.

320 Mitchell v. Sellman, 5 Md. 376. 321 Aldrete v. Demitt, 32 Tex. 575.

322 Wright v. Bessman, 55 Ga. 187. And a corporation will not be bound by the promise of its general agent. Watts v. Devor, 1 Grant, Cas. (Pa.) 267. 323 Byles, Bills, 358; Palethorp v. Furnish, 2 Esp. 511. But the husband's promise will not bind his wife at common law. Moore v. Leseur, 18 Ala. 606. And she will not be bound by her own promise after coverture, or by that of a co-maker. Pittam v. Foster, 1 Barn. & C. 248, 2 Dowl. & R. 363. And the joint obligation of husband and wife for a debt on which he was liable as

An express promise by an executor will bind his testator's estate, but not a mere acknowledgment by him, which does not necessarily imply a promise; 324 nor a letter from the executor, admitting the justice of the debt, but saying he was compelled to refuse payment until ordered by the court.325 And in Mississippi it has been held that the executor's promise will not bar the statute.326 In like manner, the acknowledgment of an administrator will not bar the statute; nor even his written promise made before the statute had run out.3

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328

An acknowledgment or promise by the principal maker will not bind a surety.329 And in Georgia the statute provides that no surety shall be bound by a payment or promise made by the principal or by a cosurety.

330

Promise by Joint Maker.

§ 1618. Before the recent statutes to the contrary, a new promise made by one joint maker or indorser revived the action as to all.331 surety will not bar the statute against his original liability. Bridges v. Blake, 106 Ind. 332, 6 N. E. $33.

224 Byles, Bills, 355; Tullock v. Dunn, Ryan & M. 416. But in Massachusetts an admission by an executor has been held to bar the statute of limitations, although not specially declared on. Baxter v. Penniman, 8 Mass. 133. He cannot, however, receive a testator's note in favor of himself as holder. Wadleigh v. Jordan, 74 Me. 483.

$25 Briggs v. Wilson, 39 Eng. Law & Eq. 62.

326 Sanders v. Robertson, 23 Miss. 389. And see Riser v. Suoddy, 7 Ind. 442. 327 Bunker v. Athearn, 35 Me. 364.

32 Huntington v. Bobbitt's Heirs, 46 Miss. 528.

320 Perham v. Raynal, 2 Bing. 306, 9 Moore, 566; Frye v. Barker, 4 Pick. (Mass.) 382. And if a surety induces the holder to delay proceedings against the principal by his own absolute promise, the statute will run in his favor from the date of such promise. Joyner v. Massey, 97 N. C. 148, 1 S. E. 702. *** GEORGIA (Civ. Code, § 2975). So, an indorser will not be bound by a new promise made by the maker. Dean v. Munroe, 32 Ga. 28. 21 Pike v. Warren, 15 Me. 390; Dinsmore v. Dinsmore, 21 Me. 433; Frye v. Barker, 4 Pick. (Mass.) 382; Clark v. Sigourney, 17 Conn. 511; Coit v. Tracy, 8 Conn. 268; Boulet v. Sarpy, 30 La. Ann. 494. So, an acknowledgment by one joint maker. Getchell v. Heald, 7 Me. 26. Although made after the debt is barred. White v. Hale, 3 Pick. (Mass.) 291. But see, contra, in such case, Lowther v. Chappell, 8 Ala. 353. And in MISSISSIPPI, before the Code of 1857, a joint maker was not bound by a promise signed by his co-maker only, or an acknowledgment of his co-maker without presentment of the note acknowledged. Foute v. Bacon, 24 Miss. 156.

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