Martin v. Williams — 17 Johns. 330

Majority

p. 261

Martin against Williams, Executor of Williams.

Headnote

In an action of assumpsit brought more than six years after the debt accrued, it. Is not necessary to aver a new promise within the six years ; but proof of an acknowledgment of the debt, within the six years, is sufficient to repel a defence set up under the statute. So, where the defendant offers to set-off a demand against the plaintiff, which accrued more than six years before the bringing of the suit, it is not necessary that the defendant, in the notice annexed to his plea, should state a promise to pay within the six years; nor is it any objection that the demand offered to be set off was not originally due to the defendant, but had been assigned to him, the assignment being before the commencement of the suit.

L\ ERROR, to the Court of Common Pleas of Washington county. Williams, as executor, &.c., brought an action of as-sumpsit against Martin, in the court below. The declaration contained three counts: I. An insimul computasscnt, with the testator, and a promise to pay him. 2. An insimul computasscnt, with the testator, and a promise to pay the plaintiff’, as executor. 3. An insimul computassent, with the plaintiff', as executor, and a promise to pay him. The defendant pleaded : 1. Non assump-Jit. 2. Non assumpsit infra sex annos. To the second plea, the plaintiff’replied, that the defendant did assume, &c., within six years, &c.

At the trial, the plaintiff below7 produced a book, in which was written: “ 12th August, 1799, then settled accounts, obligations, and all matters and things to this date, and due John Williams 670 dollars and 24 cents—John Williams.” “ Received of the above, 450 dollars, and then due, on a final settlement, to John Williams, 175 dollars 24 cents signed, ‘■•John Williams, Walter Martin.”—“ 14th, received of Walter Martin, Esquire, 100 dollars;” leaving a balance due of 75 dollars. A witness for the plaintiff’ proved, that four or five years before the trial, the defendant told him that he and the testator had settled, and that he had paid the testator all but 75 dollars. The plaintiff having rested his cause, the defendant’s counsel moved for a nonsuit, which was overruled. The defendant then offered to prove, that in the life time of the testator, the defendant and James Hawley were partners in trade, and, as partners, sold and delivered goods to the testator, to the amount of 300 dollars ; and that Hawley afterwards, and before the death of the testator, and before the commencement of this suit, assigned the said debt or demand to the defendant: and that after the death of the testator, the plaintiff, his executor, undertook and promised to pay the defendant the 300 dollars ; and which sum he offered to #set off. This evi-deuce was objected to, on the ground, that the demand was barred by the statute of limitations. And the court rejected the evidence, because the defendant had not stated in his notice. annexed to his plea, that he should rely on the new promise of the plaintiff. The jury, under the direction of the court, found a verdict for the plaintiff, to the amount of his damages.

p. 262

The defendant tendered a bill of exceptions to the opinion 0f the court below, on which a writ of error "was brought; and on the return to which, the case was submitted to the court without argument, &

delivered the opinion of the court. The statement of the defendant, that he and the testator had settled, and that he had paid him all hut 75 dollars, is an acknowledgment of the debt. In Johnson v. Beardslee, ( 15 Johns. Rep. 4 .) this court decided, that an acknowledgment of the debt is evidence sufficient for the jury to presume a new promise, w7hen, as in this case, it w7as not accompanied with a protestation against paying it. The motion for a nonsuit was, therefore, correctly overruled,^[1]

But the testimony offered to prove the amount claimed as a set-off, ought not to have been rejected, on the ground of the statute of limitations, when it was accompanied with a new promise on the part of the executor to pay. Though the facts offered to be proved, do not state the promise of the plaintiff, as executor, &c., to have been made within six years, we have a right to infer that it was so understood at the time, as- the ground on which the court overruled the testimony is stated to have been, because it did not appear, by the notice annexed to the plea, that the defendant intended to rely on the new promise. It might as well be said, that in a declaration on a note of hand, where the suit, is commenced six years after the date of the note, an averment of a promise within that period would be necessary. And it is no more necessary for the notice to contain an averment that the defendant relied on the new promise. He relied on the debt due from the plaintiffs testator, which had been assigned to him, as a proper subject of set-off, and was prepared to meet the objection to it, arising #from the statute of lirnita-tions, by proving a promise on the part of the executor to pay it, which could not be the case without an express reference to the original debt.

The notice annexed to the plea is not in the record or case ; but it seems to have been admitted on the trial, that it would have been sufficient if it had stated that the defendant intended to rely on the new7 promise. It must., therefore, be taken for granted, that it contained the original debt due Martin and Hawley, and the assignment of it to the defendant, previous to the death of the testator and to the commencement of the suit.

That an account thus assigned is deemed a proper subject: of set-off, is now well settled. The broad principle laid down

(a) (a) Vide Bradley v. Field, 3 Wendell’s Rep. 272. Doshout v. Thompson, 20 Johns. Rep. 277 . Bryar v. Wilcocks, 3 Cowen, 159. Clark v. Dutcher, 9 Cowen, 674. Schermerhorn v. Schermerhorn, 5 Wendell’s Rep. 513.

p. 263

in Tuttle v. Bebee, ( 8 Johns. Rep. 152 .) clearly embraces it. But as no objection was made to it on this ground at the trial, Abe question is not now before us. For the reasons before mentioned, the judgment must be reversed, and a venire de novo issue, returnable at the next Washington county circuit.

Judgment reversed.