Douglas v. Elkins, 28 N.H. 26

Gilchrist, C. J. It is unnecessary, to settle the question, whether the facts stated in the case constitute such a fraudulent concealment as the law requires, in order to obviate the plea of the statute of limitations. It is true, there was in the defendant’s conduct both a suppressio veri and a suggestio falsi. He told a falsehood to the plaintiff, when he said that Elliot was gone away, while he was actually at home. But this was the only fact he concealed, excepting that he did not tell the plaintiff that Elliot had told him he had transferred the note.

He also told a falsehood when he said to the plaintiff that the note was in the hands of Elliot. To make out the plaintiff’s case, on this ground, it must appear that the defendant has fraudulently concealed from him the fact that he has a cause of action, and has thus induced him to delay commencing a suit until the time prescribed by the statute of limitations has elapsed. Whether the evidence, in this case, be sufficient for that purpose it is unnecessary to determine, because there is another ground on which the plaintiff’ is entitled to recover.

When the defendant came back and said that Elliot was gone away, as is stated in the case, he said, also, that as soon as he returned he would procure the note, and have the indorsement made, and the notes and the account, receipted, were left with him with that agreement. Now as no time was specified for the performance of this promise, the law implies that it shall be fulfilled within a reasonable time, and, after having delayed for a reasonable time, the plaintiff might have maintained an action upon the promise.

But until he had been damnified, he could have recovered only nominal damages, unless he had demanded of the defendant either to return the papers or to fulfil his promise, in which case, upon a refusal, he might have recovered their amount. But no such demand and refusal are shown. It appears, however, that directly after his interview with the defendant the plaintiff left the State, and did not return for more than six years. Upon his return, Elliot brought a suit against him on the Dexter note, and the plaintiff was compelled to pay it, without any deduction being made on account of the small notes.

His return was in the year 1849, and it was not until that time that he was damnified. Then it was that a cause of action accrued to him, to recover the amount of the notes, by reason of the failure of the defendant to fulfil his promise that he would procure their amount to be indorsed on the Dexter note. It is upon this ground that, we think, the plaintiff is entitled to recover. And it is equitable that this recovery should be had. The defendant owed the plaintiff the amount of the notes and account, and by this decision he pays only what he is bound to pay.

He should have paid that amount in a reasonable time, for he should have made an arrangement with the holder of the note, which would have been equivalent to a payment to the plaintiff. There is no competent evidence of a new promise to pay the note for $6,75. When the defendant was asked to pay it, as he agreed to do, his answer was that “ folks did not do as they agreed.” But to make a new promise, there- must be an unqualified admission of an existing debt, which the party is liable and willing to pay. Manning v. Wheeler, 13 N. H. Rep. 486 ; and the evidence here falls far short of the requirement.

Upon a remission of the amount due on the note for $6,75, there should be Judgment for the plaintiff.