Majority
p. 120Bigelow and others vs. Grannis.
Headnote
Where, in an action on a note, the defence interposed was infancy, and the plaintiffs relied on a new promise after the defendant became of age; held, that a promise to a stranger, (e. g., one who, though then the plaintiff’s attorney in another suit, had not been employed in this,) would not authorize a recovery. Otherwise, had the promise been to one authorized to act in the matter as the plaintiff’s agent.Assumpsit, tried before Dayton, G. Judge, at the Monroe circuit in July, 1841. Defence, infancy at the time the promise was made: to which the answer set up was, that the defendant had made a new promise after he became of age. The proof tended to show a promise by the defendant, made to one who was attorney for the plaintiffs in another suit against the defendant; but the notes on which this suit was brought were not in the hands of the attorney, nor had he been employed to collect them at the time
p. 121
the new promise was made. The defendant objected that the alleged ratification did not bind him, because it was not made with the plaintiffs or their authorized agent. The judge overruled the objection. Verdict for the plaintiffs.
The defendant now moved for a new trial.
J H. Martindale, for defendant.
G. JET. Mumford, for plaintiffs.
This is not like the case of a debt barred by the statute of limitations, where proof of an acknowledgment will, under certain circumstances, be sufficient to save the action.[1] In the case of infancy, there must be a new promise or ratification of the contract after the defendant has attained the age of twenty-one years: and, as in other cases of contract, the minds of the parties must meet. A promise to a stranger will not answer. It must be to the plaintiff, or, what is the same thing, to his attorney or agent.
New trial granted.[2]
(a) (a) See also Hale v. Gerrish, (8 New-Hamp. R, 374, 376,) and the cases there cited,
(b) (b) See Goodsell v. Myers, ( 3 Wend, 479 .)