Pray v. Garcelon , 17 Me. 145 ( 1840 )

The opinion of the Court was drawn up by

Shepley J.

This is not a promise to settle and pay whatever is due, or may be found to be due on an unsettled account. It is only an admission by the defendant “ that he was owing plaintiff something and it ought to be settled.” An acknowledgment of present indebtedness is evidence from which a promise to pay, may be implied ; but when it does not refer to any particular claim, and none is at that time produced, no promise can be implied to settle or pay any particular demand. And it would not authorize a jury to imply a promise to pay whatever the plaintiff might prove to be due on all the dealings, which had ever existed between1 the parties. The effect of such an acknowledgment was considered in the case of Bell v. Morrison, 1 Peters, 365. One of the points decided is thus stated, “ whether the admission of a party of the existence of an unliquidated account on which something is due to the plaintiff, but no specific balance is admitted, and no document produced at the time from which it can be ascertained what the parties understood the balance to be, is sufficient to take the case out of the statute, and let in the plaintiff to prove aliunde any balance however large it might be •” and the decision upon it was, that “ it would not establish any particular subsisting debt, and therefore be destitute of any reasonable certainty to raise an implied promise.”

As the jury in this case would not be authorized to infer a promise to pay tbe demand in suit, the presiding Judge might, according to our practice, direct a nonsuit.

Exceptions overruled.