Phelps v. Sleeper

17 N.H. 332

• Court: Superior Court of New Hampshire
• Decided: July 15, 1845
• Status: Published

Opinion

Woods, J.

The only question in this case relates to the effect of the language of the defendant, when called upon by the plaintiff’s agent to pay the note in controversy. He said that his notes were never outlawed, but there was some deal between himself and the plaintiff, and that he would call upon the plaintiff and settle it — that is, the deal, and pay the balance — for the note was honestly due, and he would pay it.

In Eastman v. Walker, 6 N. H. Rep. 367, on which the defendant relies as an authority to show that such declarations amount to no more than to an admission that something was due, and would entitle the plaintiff to no more than nominal damages, the defendant said that he had some bills of costs against Eastman, and had sent him money by mail, thus clearly indicating that he had' made payments, or that he had counter claims which he was entitled to set off against the note, which would extinguish, to some extent, the claim of the plaintiff! He made no promise to pay any thing except such sum as might not have been actually paid in the manner which he described. In that case the court held that the admission that something was due did not cast upon the defendant the burden of showing how much had been paid.

The present case differs from that in important particulars. The defendant here did not pretend that he had paid any part of the note, or that he had any claim against the plaintiff which could have served as a setoff against the note. The deal spoken of might have been of such a nature as not to have been available in that way, and he did not state distinctly that any thing would be due to himself upon the adjustment of it. He said that there was deal between himself and the plaintiff, which he would call and settle in a few days. He said that he would pay the balance. If the fair construction of that language is, that he would pay the balance that might be found due upon the note, upon deducting such sum as should be due to himself upon adjusting the deal which he had named, still there follows an admission' that the note was justly due, and a promise to pay it.

In short, this admission that the note was due, and the promise to pay it, are abundantly sufficient, if standing alone, to take the case out of the statute. There is nothing in the language which accompanied that admission' and promise that materially qualifies their force and import. It is not said that there is a set-off', or that there has been a payment, or that less than the whole of the note is due; and nothing is shown to be due to the defendant in any way. The ruling of the court below was, therefore, correct, and there must be

Judgment on the verdict.