Tompkins v. Brown

By the Court, Beardsley, J. The court held that a promise to pay when able, was sufficient to avoid a plea of the statute of limitations, without giving any evidence of the pecu [249] niary condition of the party who made the promise. This xvas erroneous; the ability to pay should have been shown. (Tanner v. Smart, 6 Barn. & Cress. 603; A'Court v. Cross, 3 Bing. 329: Scales v. Jacob, id. 638; Ayton v. Bolt, 4 id. 105; Haydon v. Williams, 7 id. 163; Bush v. Barnard, 8 John. 407; Wetzell v. Bussard, 11 Wheat. 309; 2 Phil. Ev. 138, 139; Stephens' N. P. 249, 2061; Leigh's N. P. 1253, 1273, 4; Chit. on Cont. 821, 827; Bal. on Lim. (by Tillinghast) 188, 189, 546.) In Scales v. Jacob, already cited, the promise relied on was made, as in this case, before the statute had run against the original cause of action;. and, although the promise was, in its • terms, conditional, it was argued that the plaintiff could recover upon it xvithout proof of performancé of the condition, for the reason that the nexv promise was made before the original cause of action had been barred by the' statute. Upon this point the judges of the English common pleas xvere equally divided. Best, C. J. thus expressed himself upon it: “ The plaintiff then in this suit has no cause of -action after the expiration of the six years. Before the expiration of the six years, it is true a conditional promise was made, but that, if relied on, must be taken subject to the condition. In none of the cases has any distinction been-made as to the time of the promise, xvhether before or after the six years; but it is clear, that after the six years the plaintiff has no cause of action except on the new promise, and that being conditional, the condition attached to it must be observed.” This xvas in 1826, and it xvas folloxved by the case of Tanner v. Smart, cited before, xvhich xvas decided in 1827 by the court of king’s bench. The action was founded on a promissory note dated the 19th of January 1816, payable on the 30th of November then next. “ The plaintiff proved that in 1819 the note xvas presented to the defendant, and payment of it demanded ; and that the defendant said, I cannot pay the debt at present, but I xxnll pay it as soon as I can. There xvas no proof of any ability on the part of the defendant to pay the debt.” In this case therefore, as in Scales v. Jacob, the promise was [250] made before the expiration of six years, but the distinction between such a promise and one after the expiration of that period was not adverted to. The court however held, and it does not appear that either of the judges dissented, that the plaintiff could not recover, as it had not been proved that the defendant was of sufficient" ability to pay the demand. Here then was a direct adjudication upon the point, that a conditional promise, although made before the statute of limitations had run against the original demand, will not authorize a recovery without showing a performance of the condition. In the language of Chief Justice Best, such a promise, “ if relied on, must be taken subject to the condition.” And this, notwithstanding the case of Scales v. Jacob, is the settled doctrine of the English common pleas, as may be-seen in the case of Haydon v. Williams, decided in 1830, and which has been cited. The court erred in holding that a conditional promise would avoid the statute of limitations without proving a performance of the condition, and for this error the judgment should be reversed. Judgment reversed.