Sennott v. Horner & Hypes

Walker, J. It is not the evidence of the promise, that is questioned in this case, but the effect of the promise. The assignment of errors questions the correctness of the decision of the Circuit Court, in giving plaintiff’s, and in refusing to give defendant’s instructions. The former announce to the jury that the promise was unconditional, and took the case out of the operation of the statute of limitations, whilst the latter assert that it is a question for the determination of the jury, whether it was conditional or not, and if they should find it conditional, it would constitute a bar, unless it appeared that the condition had been performed. The evidence of the new promise not being questioned, it was for the court to determine its legal effect. This was done in plaintiff’s instructions, in accordance with the decision of this court, on the same facts, where the case was previously determined. 27 Ill. 13. After having carefully reviewed the law as applicable to the facts in this case, we are unable to perceive any reason to change or modify the conclusion at which we then arrived. Nor do we deem it necessary to again discuss the question, whether or not the promise was unconditional. It is, however, urged on this trial, that as the new promise was not in writing, it was barred in five years, the period then limited to sue upon verbal agreements. (See 2 and 5 Laws 1849, p. 37.) The correctness of this position depends upon the effect to be given to that promise. If the effect of, such a promise, is the same as though the note to which it relates was then delivered for the first time, or as a new instrument, then the period which bars suits on such instruments, can alone form a new bar. If, on the contrary, the promise is to be regarded merely as verbal, and to be considered without reference to the instrument to which it relates, then the statute limiting verbal agreements must govern. If the evidence of the indebtedness had rested alone on verbal evidence, then a new promise of the same character, would clearly be governed by the same act of limitation as the former. Had this note been written and dated as it is, but not delivered until the time the new promise was made, no one would for a moment doubt that it would run for the same period of time as though it bore date on the day of its delivery. Or if it had been paid and taken up at its maturity, and afterwards put into circulation by the maker, that it would have produced precisely the same effect. In each of these cases, it is the delivery which rejuvenates the instrument. Ho reason in principle or justice is perceived, why deliberately promising to pay a note already delivered, should not have the same effect as a re-delivery to the holder. The original indebtedness, in all these cases, forms the consideration to support the promise, and to recover against a plea of the statute, parol evidence must be resorted to, for the purpose of showing when the promise was made, whilst the instrument itself shows the terms of the agreement in other respects. We have been referred to no authority, nor have we been able to find any, announcing a different rule. This construction seems to comport fully with justice, and can work" no wrong. When the new promise to pay the note was made, it opérated as a re-delivery at that date, and must be governed by the same rules as though it then came for the first time into existence. Ho error is perceived in this record, and the judgment of the Circuit Court must be affirmed. Judgment affirmed.