Shreiner v. Cummins

The opinion of the court was delivered, January 31st 1870, by Agnew, J. — We do not doubt that in reviving a debt barred by the Statute of Limitations the debtor may impose conditions by which the creditor will be bound. In a promise to pay a debt barred by the Statute the consideration is the moral obligation only, and the assumption wholly voluntary on part of the debtor. He may, therefore, make terms. But is that this case ? The undertaking here was not one of mere revival. It is a part of a new and independent agreement for a different and a valuable consideration— one.not pre-existing, and concurrent in time with the new contract. The transaction was a sale of land by Shreiner to Cummins, of which the agreement for the deficiency was a material part. Non constat that Cummins would have bought had not Shreiner agreed to credit the deficiency in the former sale. The agreement being new and for a different subject, this part of it must be viewed, as a material and essential element in the contract, to be enforced not as the mere revival of a barred debt, but as an original contract, and hence the only question before us is its interpretation. The subject-matter of this clause is simply referred to, not described; and is therefore to be ascertained by evidence de hors the writing. What land was traded between these parties ? What alleged deficiency had been claimed ? These questions are not answered by the agreement. Therefore the parties must resort to evidence aliunde, and in this way the agreement of 1858 is introduced into the case as the inducement, which led to this clause in the contract of 1864. The explanatory evidence being in, it throws light on the interpretation of the new agreement. Now it is clear that by the agreement of 1858 the parties made the price of the deficiency a debt to be refunded by express terms. Certainly it was this debt which was referred to Mr. Cunningham to ascertain; for it was the alleged deficiency in the measure of the [378] land traded, lie was to report upon. It was not a part of the deficiency, hut the whole of it, he was to determine. Then if any balance should be found against Shreiner, it was that balance, the whole sum thus ascertained, that was to be the subject of the credit. The subject of the contract of 1864 in this respect was undoubtedly the same as that of 1858. The parties meant by the agreement of 1858 that the whole deficiency should be paid for. Did they mean less than this in 1864 ? If they did it was most natural that they should express it, but they did not. They meant the whole deficiency to be a credit on the new purchase. But it turns out that the deficiency is greater than the unpaid balance of the agreement of 1864, and cannot all be credited. Is the excess to be lost to Cummins ? Certainly not, unless this was plainly the intention of the parties. But how can we say this, when they evidently contemplated the ascertainment of the deficiency as a whole, and not as a part only; and provided that the whole sum found should be credited. It is not contended that less than the whole should be credited, if the balance unpaid on the agreement of 1864 were sufficient to absorb the whole. Then what have we to convince us that less than the whole debt should be paid ? The credit was but a means of payment, and doubtless the parties supposed that the balance on the agreement of 1864 would absorb it, but the intention to provide for the whole deficiency is too palpable, when this provided means of payment fails in part, to authorize us to reject the excess, and say it cannot be recovered. If the intention to sink the excess were apparent, we would be bound to follow it, but not being so, we must hold that the evident intention to pay for the whole deficiency in measurement, cannot be controlled by the accidental fact that the credit on the agreement of 1864 will not absorb the whole. The deficiency being thus recognised as a debt to be paid, the reference to Mr. Cunningham was but a mode of adjusting the sum. Hence his death, which was an act of God, is not to be considered as extinguishing the debt, but its ascertainment, being thus prevented by the act of God, must be left to the judicial tribunals of the country if the parties cannot agree upon another mode. The question in Potter v. Sterrett, 12 Harris 411, was upon the award. Death of an arbitrator without provision for substitution, ended the power to award, and of course the award fell. But here the question is — did the debt survive ? We think it did, and it was only the means of determining its amount which failed, and this being providential the parties are not injured by it. Judgment affirmed.