Fitzgerald v. Alexander & Mullen

By the Court, Cowen, J. That it is sufficient to declare on the original promise, and insist on the new one by way of replication, was spoken of by Marcy, J. in Depuy v. Swart, 3 Wendell, 141, as well established. No authority has been cited to the contrary. Wait v. Morris, 6 Wendell, 394, is in point; and so is 14 Johns. R. 178, 180. These notes fell due in 1830, and 1831. In the spring of the latter year, the defendant obtained his discharge, and soon after went to New-Orleans. Short of two years after, on being called on by the witness (Mullen) with a letter from the plaintiffs, he read it and said it was an honest debt; and if it were the last money he had in the world he would pay it, or part of it, as the witness first had it. On explanation, he put the expression without any alter [404] native. MI will pay it. I will pay part, if not the whole before you leave.” That was a promise, if the defendant intended it of these notes. On another occasion the defendant mentioned the plaintiffs as the persons to whom he owed the money which he at first promised to pay. No other debt appears to have existed between the parties, and the letter is kept back by the defendant. It was evidently in reply to a demand made in the letter that the defendant spoke. I am inclined to think that the testimony was prima facie sufficient as to the identity of the debt to which the promise referred. The old debt, however, should not only be referred to by the new promise, but that promise should be absolute and unqualified. Stafford v. Bryan, 3 Wendell, 532. Mucklow v. St. George, 4 Taunt. 613. Marcy, J. in Depuy v. Swart, 3 Wendell, 139. Lynbuy v. Weightman, 5 Esp. Rep. 198. Fleming v. Hayne, 1 Stark. Rep. 370. The language of the defendant to the witness, Mullen, did not precisely and in terms refer to the debt, nor did he, according to Mullen’s first version, make an express promise except as to part only ; but afterwards, on being recalled, Mullen explained, giving such language as seems to have imported a promise to pay the whole debt. After such a discrepancy, I think the defendant had a right to insist on the case going to the jury. Wilkinson on Lim. 152. Fleming v. Hayne, 1 Stark. R. 370. And if the court positively charged the jury that the matters proved were sufficient, the judgment should be reversed. Read v. Hurd, 7 Wendell, 408. If we are to consider the words of the bill in saying that the court held the evidence was sufficient, and with that direction left the cause to the jury, as, meaning the charge to the jury in such strong language, then the case last cited applies. In that case, it is stated that the court delivered an opinion to the jury that the evidence was sufficient. The expression here is in different words. A motion was made to nonsuit, because the evidence was not sufficient. The court denied the motion, declaring the evidence sufficient, and with that direction, says the bill, left the cause to the jury. In fairness of con [405] struction, I can not understand this as meaning any thing less than a positive direction to the jury, without leaving it open for them to say whether the witness’ first or last version of the defendant’s promise were the right one. It struck me at first, that to raise this point the bill should show that the judge was requested to leave the question open, and content himself with observing upon it. But that form was not required in Read v. Hurd. See Bull. N. P. 319, for the form of a bill of exceptions. I fear there may have been a proper charge, and that its apparently positive character may have arisen from a slip in drawing the bill; but without being hypercritical, it is impossible to distin guish this from the case cited. Judgment reversed ; a new venire to go from the court below, the costs to abide the event.