Phelps v. Stewart
Phelps v. Stewart & Wood
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Summary
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Opinion of the Court
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The opinion of the court was delivered by Royce, J.
— The defence in this case was placed upon two grounds : 1. The want of consideration for the promise declared on ; — 2, The statute of limitations.
The plaintiff was bound to prove the consideration alleged in His declaration; and this was a promise, on his part, that *262 the defendants should have all the profits upon his stock for the year ending January 1, A. D. 1829. Such an engage- ' ment does not conclusively appear from the written contract of February 11th, A. D. 1828, for the reason, that that contract was signed by the defendants alone, and not by the plaintiff. It frequently happens, however, in executory stipulations of this character, that the undertaking of the party, receiving such a contract, that he will be bound by it, and perform what is essential to give it operation against the other party, is established by implication and inference from the attending facts and circumstances. This is illustrated by the common case of a promise to pay the debt of another, in consideration of forbearance. If, in such a case, the creditor appears to have acted upon the contract, by granting the forbearance stipulated for, it will generally be implied, that,, in accepting the collateral promise, he engaged to forbear. The question then arises, whether the evidence, in the present case, had a legitimate tendency to show that the alleged-promise, on the part of the plaintiff, was in fact made. That it had such tendency, we have no doubt; and since it is not our province, upon this occasion, to weigh the evidence, I shall merely allude to some circumstances in it, which we think were clearly proper for the consideration of the triers. The first thing to be noticed, is, the written contract, signed by the defendants. Considering the known capacity and acquaintance with business possessed by all these parties, it is highly improbable that the agreement should have been left imperfect, depending for its validity upon the option of one party, when no such option is expressly given by the writing. The last clause of the contract, “ by having all the profits arising therefrom,” does not necessarily import that the plaintiff had retained the right of withholding those profits. So far fronr it, that, had he signed the agreement, this clause would doubtless have been construed as a stipulation on his part to surrender them. Again, the case discloses no act or declaration of the plaintiff, at any period, indicating that he did not intend to abide by the agreement, or that he did not regard it as obligatory upon himself. And, at last, we find the plaintiff and the defendant, Stewart, together, in A. D. T835, adjusting the results of this contract, with no intimation, on either side, but that it was, and always *263 had been, mutually binding. In view of all this we do not feel at liberty to say that the alleged consideration has been found by the court below, without evidence properly' tending to establish it.
The other ground of defence remains to be considered. In this form of action, a subsequent express promise was always held to remove the statute bar to a recovery. And it is settled law, in this state, that an unqualified acknowledgment of the debt as unpaid and still subsisting, is evidence from which a new promise to pay is to be inferred. In deciding what shall amount to such acknowledgment, we have discarded the old rule of construction, which had nearly operaated to repeal the statute, and we now hold that the conduct and declarations of the party shall be understood in their natural and obvious sense, as if applied to any other •subject. The question is, whether here was such an acknowledgment of this demand, by the defendant, Stewart, in 1835, as will justify the inference of a promise to pay it. This defendant, without distinctly admitting that the debt was then due, offered to pay half of it, at the same time saying that Wood ought to pay the other half. Thus far his declarations may fairly be construed as an admission that the whole debt remained unsatisfied ; in other words, that :he and Wood still owed the entire debt. From this the inference of a promise, that they would pay the debt, might properly be drawn. But that was not the whole declaration. He added, “ that he could not pay Wood’s debts, he had paid enough for him.” These expressions amounted to an explicit refusal to pay Wood’s portion of this debt. Now I understand the doctrine upon this subject to have ■undergone some change within the last few years. It does not, as formerly, limit the operation of the ' statute to those cases alone where a presumption of payment may be made. Another consideration is involved, when the acknowledgment of a debt, already barred by the statute, is relied upon, that of an express or implied waiver, by the debtor, of his protection under the statute. An acknowledgement of the debt, standing alone, contains this implied waiver, because it justifies an inference of the "debtor’s intention to pay what he confesses to be due from him. But, if the intention to pay is fully negatived, there is no ground for inferring any *264 waiver. The rule to be extracted from the recent decisions in this state, is, that there must be an acknowledgment of the debt as still due, with an apparent willingness to remain liable for it, or, .at least, without an avowed intention to the contrary. Here the defendant openly declared his determination not to pay, beyond the one half which he offered to pay. We are not at liberty, therefore, when all the declarations are considered, to raise an implied promise, in direct opposition to the party’s declared intention. The consequence is, that, upon the facts proved, the plaintiff was entitled to recover but a moiety of his demand. And whether this could be recovered against both defendants, or againstj Stewart alone, we do not decide, as the cause is opened for another trial, and the question was not raised in the argument.
Judgment of county court reversed.
After this court had rendered a judgment, reversing the judgment of the court below, the plaintiff moved for a judgment for the half of the debt which the defendant, Stewart, had distinctly offered to pay. But the . court declined entering such judgment, on the ground that when, as in this case, the issue of fact below is tried by the court, and the evidence, only, is stated in the bill of exceptions and not the facts found, it is not competent for this court, after reversing the judgment of the court below, to proceed to enter a final judgment in the case.
In such case either party is entitled to a new trial, by jury.
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