Williams v. Finney

The opinion of the court was delivered by It is needless to repeat the rules which this court has laid down upon the' subject under consideration. Suffice it to say that we have no 'disposition to relax or vary them. The ques [299] tion is, whether here was such a new promise in fact, or such an acknowledgement of the debt, as will defeat the operation of the statute. Royce, J. [299] It is found by the auditor’s report, that, within the six years next preceding the commencement of this action, the defendant frequently stated to Mr. Ormsbee, the known agent and attorney of the plaintiff in reference to the demand now in suit, that the account ought to be settled, and that he would call on the plaintiff and settle it; adding that he did not suppose there was much due the plaintiff. Now if we construe these declarations in the sense most favorable to the defendant, — not as a promise to settle the account by actual payment, but merely to adjust it 'with the plaintiff and strike the balance, there was at least a promise to give a new cause of action for whatever was justly due. This could be nothing less than a recognition of the debt as still subsisting, and a waiver of all protection under the statute. T.he decisions in this state have never required that the action should be brought upon the new promise, unless it goes to alter and restrict the original liability. And that could not be pretended in this instance, after a reasonable time had elapsed for the defendant to call and settle the account. There appears to be no substantial ground -for the objection in regard to interest. The defendant could have disavowed his liability for interest, as well as for the principal debt; or have protected himself in reference to either, by any limitations which he saw fit to claim. But since he promised, with no such qualification, to settle the account, it should be supposed that he intended a-settlement in the usual manner, including interest on the balance, if required, according to the general usage in this state. Judgment of countj court affirmed.