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lapse of a reasonable time. If an unqualified acknowledgment is accompanied by a request to the creditor to abate a portion of the claim, this request will not prevent the revival of the debt; nor will an inquiry as to what the debtor will take in full payment.53 A promise to pay a debt in instalments involves the same question as a promise to pay in part so far as the question of acceptance is concerned. If acceptance is made or is unnecessary the debtor becomes liable according to the terms of his promise, but only on those terms, even though some of the instalments are paid.54

§ 182. A new promise to pay when a debtor is able, or on other conditions.

The effect of a promise to pay when able is of legal importance not simply with reference to debts barred by the Statute of Limitations, but in other cases. Such promises when supported by consideration are generally, though not universally, upheld and enforced according to their natural meaning. 55 If the propriety of treating the existence of a barred debt as sufficient support for a promise is admitted, there seems no reason why such promises should not similarily be enforced when the Statute of Limitations is involved. That is, the new promise should bind the promisor to pay on the condition, and only on the condition that he becomes able to do so. This is the generally accepted rule. 56 So a promise to pay when

52 Will v. Marker, 122 Iowa, 627, 98 N. W. 487.

53 Rumsey v. Settle's Est., 120 Mich. 372, 79 N. W. 579; Crandall v. Moston, 42 N. Y. App. Div. 629, 59 N. Y. S. 146.

54 Earle v. Oliver, 2 Exch. 71, 90; Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320. See also Strong v. Andros, 34 App. D. C. 278; Galvin v. O'Gorman, 40 Mont. 391, 106 Pac. 887; Equitable Trust Co. v. MacLaire, 77 N. Y. Misc. 116, 135 N. Y. S. 1022; and infra § 196.

55 See infra, § 804.

58 Davies v. Smith, 4 Esp. 36; Scales v. Jacob, 3 Bing. 638; Tanner v. Smart,

6 B. & C. 603; Edmunds v. Downes, 2 C. & M. 459; Lusher v. Hassard, 20 T. L. Rep. 31, 563; Richardson v. Bricker, 7 Col. 58, 1 Pac. 433, 49 Am. Rep. 344; Sedgwick v. Gerding, 55 Ga. 264; Boone v. A'Hern, 98 Ill. App. 610; Dezell v. Thayer, 2 Kans. App. 587, 44 Pac. 686; Chism v. Barnes, 104 Ky. 310, 317, 47 S. W. 232, 875; Mattocks v. Chadwick, 71 Me. 313; Bidwell v. Rogers, 10 Allen, 438; Gill v. Gibson, 225 Mass. 226, 114 N. E. 198; Halladay v. Weeks, 127 Mich. 363, 86 N. W. 799, 89 Am. St. Rep. 478; Wilcox v. Williams, 5 Nev. 206; Barker v. Heath, 74 N. H. 270, 67 Atl. 222; Parker v. Butterworth, 46 N. J. L. 244, 50 Am.

a certain estate is settled, 57 or a promise to pay if on looking the matter up in his books the promisor found that it had not already been paid, 58 is given effect according to its terms. Moreover, since the creditor first acquires a new right of action when the time for performance of the debtor's promise arrives, it follows that the debt is revived for a new statutory period computed from the time when the promise should have been performed, not from the time when it was made. 59

§ 183. Promises not to plead the Statute of Limitations.

Either prior to the expiration of the statutory period or subsequently, a debtor may promise not to plead the Statute of Limitations. He may make such a promise for sufficient consideration, or he may make it for no consideration. If the promise is made for sufficient consideration the only questions that can arise are whether such a promise is altogether opposed to public policy, and, if not, for how long a period the promise is effective. There seems no reason to distinguish in this respect between promises made at the time of the creation of the debt 60 and promises made subsequently, but

Rep. 407; Tompkins v. Brown, 1 Denio, 247; Tebo v. Robinson, 29 Hun, 243; Scott v. Thornton, 104 Tenn. 547, 58 S. W. 236. The North Carolina court apparently does not recognize the validity of conditional promises to pay even though the condition has happened. Cooper v. Jones, 128 N. C. 40, 38 S. E. 28. See also Simrell v. Miller, 169 Pa. St. 326, 32 Atl. 548. A few decisions holding that such a promise is in effect an absolute one, creating an immediate liability can be supported only on the assumption not now generally permissible that the mere admission of indebtedness revives it. Horner v. Starkey, 27 Ill. 13 (see Walker v. Freeman, 209 Ill. 17, 70 N. E. 595, and cases cited); Norton v. Shepard, 48 Conn. 141, 40 Am. Rep. 157; First Congl. Society v. Miller, 15 N. H. 520 (overruled in Barker v. Heath, 74 N. H. 270, 67 Atl. 222); Cummings v. Gossett, 19 Vt. 310. In Boynton v. Moul

ton, 159 Mass. 248, 34 N. E. 361, the defendant promised to pay on a certain barred claim "such amount as I can." It was held this was a promise merely to pay what the defendant could pay on the particular day when the promise was made, and, it being found as a fact that on that day he could pay nothing, the plaintiff was held entitled to recover nothing.

57 Francis v. Rycroft, 148 N. Y. App. Div. 65, 132 N. Y. S. 14.

58 Thyng v. Hussey, 76 N. H. 572, 79 Atl. 690.

59 See Irving v. Veitch, 3 M. & W. 90; Re Stock, 3 Manson, 324; Matter of Nargones, 161 N. Y. App. Div. 563, 565, 146 N. Y. S. 922, affd. 213 N. Y. 659, 700, 107 N. E. 1082, 108 N. E. 1101; M'Donnell v. Broderick, [1896] 2 I. R. 136.

60 Such were the promises in Quick v. Corlies, 39 N. J. L. 11; State Trust Co. v. Sheldon, 68 Vt. 259, 35 Atl. 177.

for good consideration.61 To some courts it has seemed that as the Statute of Limitations is founded in part at least on principles of public policy, and not simply as a protection to the debtor, the period of limitation prescribed by statute cannot be changed by contract or action in reliance on a promise though an agreement to this end subsequent to the creation of the debt if in writing and if fairly to be construed as including an admission of the debt, might have the same effect as a new promise or acknowledgment.62 But more commonly such agreements have been held valid contracts.63 If such a contract is valid and ordinary principles are applicable "the Statute of Limitations would not begin to run upon [it] so long as it remained unbroken," 64 and since if the creditor forbore to sue indefinitely, the contract not to plead the Statute would never be broken, in effect the creditor would require a perpetual cause of action. It is not likely, however, that most courts would accept this logical consequence of the premise, and thereby allow the creditor a perpetual right. In California, indeed, it has been said that the promise not to plead the Statute is binding so long as the creditor acts upon it,65 but more commonly the contract is treated as limited by the same term as it would be if merely a new promise to pay the debt.66

See also Newell v. Clark, 73 N. H. 289, 61 Atl. 555.

61 See cases cited in the following notes in this section.

62 Green v. Coos Bay Wagon Road Co., 23 Fed. Rep. 67, 70; Moxley v. Ragan, 10 Bush, 156, 159, 19 Am. Rep. 61; Wright v. Gardner, 98 Ky. 454, 33 S. W. 622, 35 S. W. 1116; Carraby v. Navarre, 3 La. 362; Crane v. French, 38 Miss. 503; Shapley v. Abbott, 42 N. Y. 443, 452, 1 Am. Rep. 548; Mutual L. Ins. Co. v. United States Hotel Co., 82 N. Y. Misc. 632, 644, 144 N. Y. S. 476; Nunn v. Edmiston, 9 Tex. Civ. App. 562, 29 S. W. 1115. See also Hodgdon v. Chase, 29 Me. 47, 32 Me. 169.

63 Waters v. Thanet, 2 Q. B. 757; Randon v. Toby, 11 How. 493, 13

L. Ed. 784; Wells, Fargo & Co. v. Enright, 127 Cal. 669, 60 Pac. 439; State Trust Co. v. Cochran, 130 Cal. 245, 62 Pac. 466, 600; Mann v. Cooper, 2 Dist. Col. App. 226; Holman v. Omaha, etc., Ry. Bridge Co., 117 Ia. 268, 90 N. W. 833, 62 L. R. A. 395, 94 Am. St. Rep. 293; Webber v. Williams College, 23 Pick. 302; Bridges v. Stephens, 132 Mo. 524, 34 S. W. 555; Quick v. Corlies, 39 N. J. L. 11; State Trust Co. v. Sheldon, 68 Vt. 259, 35 Atl. 177.

64 Kellogg v. Dickinson, 147 Mass. 432, 435, 18 N. E. 223; 1 L. R. A. 346.

65 State Trust Co. v. Cochran, 130 Cal. 245, 253, 62 Pac. 466, 600. See also Holman v. Omaha, etc., Ry. & Bridge Co., 117 Ia. 268, 90 N. W. 833, 62 L. R. A. 395, 94 Am. St. Rep. 293.

66 Waters v. Thanet, 2 Q. B. 757;

§ 184. Promises without consideration not to plead the Statute of Limitations.

A promise not to plead the statute will generally on a fair construction imply a promise to pay the debt. If such a promise is fairly to be implied, the debt will be revived to the same extent as if there had been an express acknowledgment or new promise in terms to pay it.67 It is possible, however, for a debtor to make a promise which fairly construed means merely that the debtor will not rely on the defence of the Statute of Limitations, but may take advantage of any other defence open to him. It is doubtful if such a promise is binding without either consideration,68 or action by the promisee in reliance on the promise.69 The exceptional doctrine which allows the enforcement of promises based on antecedent debts must, it would seem, be confined to promises to pay the debts in whole or in part.70 Where the promise not to plead the statute is made prior to the expiration of the statutory period, and the creditor relying on the promise refrains from bringing action, some cases hold the debtor estopped to plead the statute." It may

Cameron v. Cameron, 95 Ala. 344, 10 So. 506; Crane v. French, 38 Miss. 503; Bowmar v. Peine, 64 Miss. 99, 8 So. 166; Newell v. Clark, 73 N. H. 289, 61 Atl. 555; Joyner v. Massey, 97 N. C. 148, 1 S. E. 702; Cecil v. Henderson, 121 N. C. 244, 28 S. E. 481. McIntosh v. Condron, 20 Pa. Sup. 118. Under this construction a promise not to plead the Statute made as part of the original transaction would not extend the obligation beyond the period within which it would have been enforceable had there been no promise to waive the Statute. Newell v. Clark, 73 N. H. 289, 61 Atl. 555. See also Mutual L. I. Co. v. United States Hotel Co., 82 N. Y. Misc. 632, 144 N. Y. S. 476. Therefore cases like Quick v. Corlies, 39 N. J. L. 11, and State Trust Co. v. Sheldon, 68 Vt. 259, 35 Atl. 177, which allow the creditor to sue after the lapse of the original statutory period are opposed to the decisions previously cited.

67 Gardner v. M'Mahon, 3 Q. B. 561; Trask v. Weeks, 81 Me. 325, 17 Atl. 162; Bowmar v. Peine, 64 Miss. 99, 8 So. 166; Shapley v. Abbott, 42 N. Y. 443, 446, 1 Am. Rep. 548; Lowry v. Dubose, 2 Bailey (S. C.), 425; Gardenhire v. Rogers (Tenn. Ch. App.), 60 S. W. 616; Jordan v. Jordan, 85 Tenn. 561, 3 S. W. 896; Burton v. Stevens, 24 Vt. 131, 58 Am. Dec. 153; Stearns v. Stearns' Adm., 32 Vt. 678.

68 Mann v. Cooper, 2 D. C. App. 226, 238; Warren v. Walker, 23 Me. 453; Stockett v. Sasscer, 8 Md. 374; Marseilles v. Kenton's Exec., 17 Pa. 238, 245. See also Woodham v. Hollis, 3 L. J. K. B. (N. S.) 70; Alexander v. Muse, 112 Tenn. 233, 79 S. W. 117 But see State, Trust Co. v. Cochran, 130 Cal. 245, 251, 62 Pac. 466, 600.

69 See supra, § 139.
70 See supra, § 143.
71 See supra, § 139.

seem at first sight that there is no greater reason for applying the doctrine of estoppel in such a case than in any other case where a promise is made without consideration given or requested, but with the knowledge or expectation that the promisee will change his position on the faith of the promise; 72 but there is much authority to indicate that though original contractual rights cannot be created by means of such a promissory estoppel, defences may be thus effectively waived or surrendered.73

§ 185. Terms on which a new promise revives a debt.

If the new promise whether express, or implied from an acknowledgment, is itself the cause of action, the indebtedness should be extended by such a promise for the period allowed by law for the enforcement of simple contracts, and such is believed to be the proper rule, unless the natural construction of a statute governing the matter leads to a different result.74 Largely because of the construction put upon particular statutes, there are decisions which hold that the new promise operates to set aside the defence of the Statute, and to allow the enforcement of the claim during a new period equal to that allowed by law for the enforcement of the original indebtedness. Under this view, if the Statute allows ten years for the enforcement of a note, a new promise starts a new period of ten years, although the period allowed for the enforcement of simple contract obligations is shorter." 75 A somewhat analogous question is whether the terms of the

72 See supra, § 139. 73 See infra, § 689.

74 McCormick v. Brown, 36 Cal. 180, 95 Am. Dec. 170; Boukofsky v. Powers, 1 Utah, 333; Gruenberg v. Buhring, 5 Utah, 414, 16 Pac. 486.

75 Frisbee v. Seaman, 49 Iowa, 95; Bayliss v. Street, 51 Iowa, 627, 2 N. W. 437; Brisbin v. Farmer, 16 Minn. 215, 219; Gailer v. Grinnel, 2 Aiken, 349 (judgment); Bradley v. Briggs, 22 Vt. 95 (judgment). This result seems to have been reached without discussion in Abner v. York, 19 Ky. L. Rep. 643,

41 S. W. 309; Waltemar v. Schnick's Est., 102 Mo. App. 133, 76 S. W. 1053; McSween v. Windham, 104 S. Car. 508, 89 S. E. 500. In Enright v. Griffith, (Wis. 1919), 172 N. W. 156, a husband had made part payment to his wife on a note he had given her before marriage. The court held that the implied promise did not create a new contract between husband and wife on which under the local statute time would not run, but merely extended the statutory period on the original debt.

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