Elisha Peirce vs. Seth F. Tobey & another, 5 Met. 168

Dewey, J. The statute of limitations constitutes a good defence for Joshua B. Tobey, one of the defendants ; the term of six years having elapsed since the cause of action accrued against him, and no sufficient ground being shown to take the case out of the operation of the statute. The verbal, promise of the party to pay the same did not revive the debt and avoid the statute. The St. of 1834, c. 182, § 1, and Rev. Sts. c. 120, § 13, alike required that such u promise be made or contained by or in some writing signed by the party chargeable thereby.” The payment of a part of the note, within six years, by Seth F.

Tobey, the other joint promisor, did not take the case out of the operation of the statute of limitations as respects Joshua B. Tobey. Independent of the peculiar pro visions of the Rev. Sts. c. 120, § 18, it might have been otherwise ; but by this enactment it is expressly provided, that if there are two or more joint contractors, no one of them shall lose the benefits of the limitation act, so as to be chargeable by reason only of any payment made by any other of them.

It is true that the payment was made before the revised statutes went into operation; but this does not prevent the operation of the statute upon this demand. In the present case, the note had been due less than two years when the revised statutes were enacted, leaving the promisee a period of four years to enforce his demand. These statutes may well apply to contracts then in existence, allowing a reasonable time for creditors to institute their actions before the statutes took effect. Morrison v. Smith, 22 Pick. 430. Penniman v. Rotch, 3 Met. 216. The case, as to Seth F.

Tobey, rests upon a different state of facts, and such as lead to a different result as to his liability. He has made a payment upon this note within six years before this action was instituted, and the effect of such payment, (independent of the question of his minority,) is, to renew his liability for the period of six years from the time of making such payment. But then it is said that he was a minor when he made the original promise, and also when he made the payment upon the note.

This is admitted to be the fact; and this would constitute a good defence, if he had not subsequently ratified and confirmed the promise thus made and thus renewed while he was yet a minor. A contract, made by a minor, may be confirmed after his arrival at full age ; and if so done, and by words proper to give it force and effect as a valid contract, it will be operative and binding upon him. A mere acknowledgment of a debt as existing, is not sufficient, but there must be a direct promise, or a direct confirmation, before any liability attaches. The case finds such direct promise of payment made by Seth F.

Tobey after he came of full age. The further inquiry is, whether this promise attaches to the note, renewed, as it was by the payment made upon the sum by the' party. Such we think to be the effect of it. By force and effect of the payment made in 1835, the note became a new promise from that date, and it was such new promise, or at least the original note, with all the consequences attached to it by reason of such payment, that was confirmed and ratified by the maker, by his n?w promise made after he came of age. The effect then of the payment upon the note and of the subsequent new promise by Seth F.

Tobey after arriving at full age, is, to remove both grounds of defence relied upon in his behalf. The ruling of the court of common pleas, as it respects Joshua B. Tobey is confirmed ; and as to Seth F. Tobey, the exceptions taken must prevail. New trial granted.