Mooar v. Mooar

• Decision Date: 28 July 1899
• Citation: 46 A. 1052,69 N.H. 643
• Parties: MOOAR v. MOOAR.
• Court: New Hampshire Supreme Court

46 A. 1052

69 N.H. 643

MOOAR

v. MOOAR.

Supreme Court of New Hampshire. Hillsboro.

July 28, 1899.

Exceptions from Hillsboro county.

Action by one Mooar, administrator, against John Mooar. Verdict for plaintiff. Defendant excepts. Exceptions sustained.

Assumpsit to recover the amount due on four notes given to the plaintiff's intestate. Plea, the general issue, with a brief statement of the statute of limitations. The plaintiff's evidence tended to show that, after the death of the payee of the notes, she sent the notes to one Jacob Mooar to compute the amount due upon them. Jacob found due on the notes $163. Subsequently, the plaintiff employed counsel, who, by his computation, found $3,400 to be due. There was evidence tending to show an express promise by the defendant to pay what was due on the notes. There was no evidence of an express promise by the defendant to pay any definite sum, except that John, upon learning of the result of Jacob's computation, wrote a note for $163, payable to the plaintiff; that this fact was communicated to the plaintiff; and that the defendant was willing to adjust the controversy on this basis. The defendant de nied the express promise, but admitted the facts as to the $163 note. After the charge to the jury was given, the defendant requested the court to instruct the jury that an offer to make a new note for $163 was not evidence of a new promise for any greater amount The request was denied, subject to exception. It appeared that it would require the examination of a long and complicated account to determine the amount due on the notes, and the court found that for this reason the question of the amount due ought not to be submitted to the jury. The only questions submitted to them were (1) whether the note for $1,400 (one of those declared on) had been paid; and (2) whether there was a new promise. To this ruling the defendant excepted. The jury returned a general verdict for the plaintiff, assessing the damages in the amount of the notes, and, in answer to a special question submitted to them as to the $1,400 note, found that it had not been paid.

William H. Drury, for plaintiff. Isaac L. Heath, for defendant

PARSONS, J.An acknowledgment as the basis of the inference of a new promise in answer to the statute of limitations must contain "an unqualified admission of a previous subsisting debt which the party is liable and willing to pay." Engel v. Brown (N. H.) 45 Atl. 402. An express new promise may be limited by conditions made a part of it Stowell v. Fowler, 59 N. H. 585; Betton v. Cutts, 11 N. H. 170, 179. The effect of an acknowledgment as evidence of a new promise may be qualified in the same way. Dodge V. Leavitt, 59 N. H. 245; Engel v. Brown, supra. Hence, an acknowledgment that a certain sum is due is evidence of a new promise only to the extent of the amount admitted. Weare v. Chase, 58 N. H. 225; Kittredge v. Brown, 9 N. H. 377, 379; Bank v. Sullivan, 6 N. H. 124, 132. The jury found by their general verdict that the defendant made a new promise to pay the amount due on the notes. If this verdict has determined anything, it must mean a new promise to pay the sum which should be found due upon the computation...