Laurence v. Hopkins — 13 Johns. 288

Majority

p. 288

Laurence against Hopkins.

Headnote

To take » deftatvte'onim'r must be a pra mise express, or implied.

And no promise cromt deSara11 íeDdant ufatlfs topáyanyuíto^ .tract iaw;eandrt(iathe any?thing,IdssaR

defendant ^ to suit,?-1 Wicfi' is Itmade userSf to take the case mitojthestatme

THIS was. an action- on- a joint and several promissory note, of which the defendant was one of the makers, dated the 7th of October, 1803, payable to E'benezer Whiling, or order, four years- " ' alter date, for 152 dollars and 52 cents, and endorsed by th& Payee i° R>e plaintiff.. The defendant pleaded the general issue,, and non assumpsit infra sex amios, to wliich the plaintiff replied, The cause was- tried before Mr.,Justice.Plait, at the 'Scheneclar in November, 1815. ,

The plaintiff was nohsuited at the trial upon a variance between the note given its evidence, and the declaration. The in making up the ease, agreed to submit to the court the following testimony in relation to the defence, of the statute of limitations; which wds, that the defendant, in a conversation with one witness, stated, that he had been lately sued.upon a contract made with Whiting; and that, by the terms of the contract,hehad never considered himself-hold'en to pay any thing ; and that his' counsel had advised him that the contract could not be enforced- at law;, and that, in'a conversation with another witness, upon thei witness mentioning that he had attempted to settle, with the plaintiff, upoh. the note, and, had offered him twenty-five dollars on behalf of the- defendant, to- be in full of the note,, which the plaintiff refused to accept, the defendant replied,-that lie was sorry any,sueli offer had been made, as be -/never would pay pne cent on the note, as he-considered it an unjust debt.

The' case was submitted to the court without a-rguingnt.

The evidence is not sufficient to take .the case out of the statute of limitations. It neither shows an express or implied promise'to pay the debt.; but, on the contrary, it appears that the defendant uniformly .considered the demand as unjust from the,beginning, and that hé was- under no obligation to-pay it. To infer a promise to pay, ih direct apposition to the defend-1 ant’s denial of the justice and fairness of the debt, would be trifling with the statute. The proposition to give 25 dollars to settle the demand must be laid out of. the case, because that was a mere péáce-offering, and being rejected, it- cannot prejudice the defendant.

Judgment for the defendant,