Hodgdon v. Chase , 29 Me. 47 ( 1848 )

The opinion of the Court was delivered, at the same term, orally as follows, by

Wells J.

This is an action of assumpsit on an account. It comes to this Court upon exceptions to the instructions given to the jury by the Judge of the District Court. The jury were instructed that “ if the defendant had agreed with the plaintiffs, for a valuable consideration, to waive any defence he might have had, by virtue of the statute of limitations, or to take no advantage of the same, such an agreement, although not in writing, would preclude the defendants from setting up such defence.”

Chap. 146, <§> 19, R.ev. Stat. provides, that “ no acknowledgment or promise shall be allowed, as evidence of a new or continuing contract, &c., unless such acknowledgment or promise be an express one, and made or contained in some writing, signed by the party chargeable thereby.”

It is contended by the plaintiffs, that it having been decided in the case of Warren et al. v. Walker, 23 Maine R. 453, that an agreement in writing, to waive the statute of limitations, made for a sufficient consideration, before the statute could operate as a bar, would preclude the party making such agreement, from setting up such defence, that the same result would follow from making a parol agreement, under the same circumstances.

But in that case the agreement was in writing; in this it is by parol.

The Legislature must have intended to change the existing law, and not to trust to the memory of witnesses, in testifying to a new promise or acknowledgment of indebtedness.

Whether an action could be maintained upon the promise, which, it is contended, has been proved in the present case, it is unnecessary to determine.

The agreement, set up, is not “ contained in some writing.” The form and mode of making it is immaterial, while it consists in words, not reduced to writing, signed by the party chargeable. The requirements of the statute are plain, and the language used clearly indicates the intention of the Legislature.

The exceptions are sustained.