Lang v. Gage , 65 N.H. 173 ( 1889 )

An unqualified, voluntary payment of money is a recognition of an existing liability by the party making it, and the ground upon which a payment by the debtor furnishes evidence of a new promise is, that it shows an acknowledgment of an existing unpaid debt which he is liable and willing to pay. The mere payment of money is not such an acknowledgment. Part payment alone is merely an acknowledgment of indebtedness pro tanto. The effect of a payment may be qualified and limited as a new promise may be. Dodge v. Leavitt, 59 N.H. 245. The efficiency of a payment to avert the effect of the statute of limitations as a bar rests in the conscious and voluntary act of the debtor explainable only as a recognition and confession of the existing liability. Blair v. Lynch, 105 N.Y. 636. The principle on which part payment takes a case out of the statute is, that the party paying intended by it to acknowledge and admit the greater debt to be due. United States v. Wilder, 13 Wall. 254, 256. If the payment is accompanied by acts or declarations showing that the debtor does not intend to pay the remainder of the debt, it will not remove the bar of the statute. It must appear that the payment was a partial one, and made under such circumstances as to show that the debtor understood that he was liable to pay the residue of the debt, and his willingness to pay it. Brown v. Latham, 58 N.H. 30.

The defendant was a surety for C. J. C. Gage. The payments upon the note were made by him for the Penacook Savings Bank from funds received by the bank from the sale of property mortgaged by C. J. C. Gage to the defendant to indemnify him for his liability as surety on this and on other notes held by the bank. The defendant assigned the mortgage to the bank, "to be held by it for the same purposes and to secure the same debts and liabilities" for which it was made. The bank foreclosed the mortgage, and the payments were made by the defendant as an officer of the bank, from funds of the principals obtained from the foreclosure. Therefore the payments were made in fact by the bank for the principals.

A new promise cannot be reasonably inferred from payments made under such circumstances. A payment by an agent with his principal's money is not evidence of the agent's personal liability. The acknowledgment of indebtedness arises from the fact of payment by the party in his own behalf in performance of a personal obligation, and a payment made for another is not such a payment as will warrant the inference of a new promise by the party making it. A part payment by a debtor unaccompanied by any act, declaration, or circumstances showing an intention to limit his acknowledgment of liability to the sum paid, is evidence from which a new promise may be inferred, but such inference is not warranted when it appears that the payment was not intended as an acknowledgment of personal liability, or as an admission of indebtedness beyond the amount of the payment.

The payments made by the defendant were not sufficient evidence of a new promise, and, unless the defendant's conduct was such as to estop him from showing the facts, — a point upon which the case furnishes no evidence, — it is immaterial whether the plaintiff knew the source from which the money was obtained, or the capacity in which the defendant made the payments.

Case discharged.

CARPENTER, J., did not sit: the others concurred.