Frequently a debtor couples his admission of a debt with the assertion that he is entitled to set off a claim of his own against the debt. If the assertion is to the effect that the set-off will cancel the indebtedness, it is obvious that the statement taken as a whole amounts to a refusal to pay the debt, and no new promise can be implied.47 So if the acknowledgment of indebtedness is conditional on the creditor's assent to the validity of a set-off, no new obligation on the part of the debtor can arise unless the creditor expresses such assent.48 But if the debtor acknowledges the debt unqualifiedly, there seems no reason why a new promise should not be inferred from the acknowledgments merely because he asserts that he has a cross claim. In effect the debtor thereby promises to pay the excess of the old debt over and above his own claims. In one of the exceptional jurisdictions which require the promise or acknowledgment to fix the amount of the debt,49 the promise to pay even a fixed amount subject to an undefined set-off, would not be effectual.50 But wherever an acknowledgment of indebtedness of indefinite amount is effective, the assertion of a right to set off such valid claims as the debtor may have ought not to prevent the revival of the debt.51 An acknowledgment of indebtedness, coupled with an assertion that the amount claimed by the creditor is excessive presents the same question. Such an acknowledgment has been held sufficient;52 and if the debtor indicates to what degree he considers it excessive, so that his implied new promise is not too uncertain for enforcement, this result should be reached.
43 Gardner v. McMahon, 3 Q. B. 561; De Forest v. Hunt, 8 Conn. 179; Robinson v. Day, 7 La. Ann. 201 (interrupts prescription of debt not barred); Bloom v. Kern, 30 La. Ann. 1263 (interrupts prescription of debt not barred); Beeler v. Clarke, 90 Md. 221, 44 Atl. 1038, 78 Am. St. Rep. 439; Chidsey v. Powell, 91 Mo. 622, 4 8. W. 446; Rolfe v. Pilloud, 16 Neb. 21, 19 N. W. 615, 970; Cudd v. Jones, 63 Hun, 142, 17 N. Y. S. 582; Howard v. Win-don, 86 Tex. 560, 26 S. W. 483; cf. Eckford v. Evans, 56 Miss. 18; Kirk-bride v. Cash, 34 Mo. App. 256; At-wood v. Cobum, 4 N. H. 315.
44 Lee v. Wilmot, L. R. 1 Exch. 364; Walker v. Freeman, 209 111. 17, 70 N. E. 595; Quinlan v. Thompson, 152 111. App. 275; Boyliss v. Street, 51 Ia. 627, 2 N. W. 437; Jenckes v. Rice, 119 Ia. 451, 93 N. W. 384; Cleland v. Hos-tetter, 13 N. Mex. 43, 79 Pac. 801; Coffin v. Secor, 40 Ohio St. 637; Cars-ley v. McFarlane, 26 Nova Scotia, 48.
45In re Bethell, 34 Ch. D. 561; Bullion & Exchange Bank v. Hegler,
93 Fed. 890. But see Lee v. Wilmot, L. R. 1 Exch. 364,
46 Knott v. Farren, 4 D. & R. 179 ("I can't afford to pay my new debts, much less my old ones"); Rackham v. Marriott, 2 H. & N. 196 ("I do not wish to avail myself of the Statute of limitations to refuse payment of the debt. I have not the means of payment and must crave a continuance of your indulgence. My situation as a clerk does not afford me the means of paying up a shilling, but in time I may reap the benefit of my services in an augmentation of salary that may enable me to propose some satisfactory arrangement. I am much obliged to you for your forbearance"). See also Thayer v. Mills, 14 Me. 300; Kirkbride v. Gash, 34 Mo. App. 256; Bailey v. Crane, 21 Pick. 323; Wald v. Arnold, 168 Mass. 134, 46 N. E. 419; Atwood v. Coburn, 4 N. H. 315; Manning v. Wheeler, 13 N. H. 486; Hancock v. Bliss, 7 Wend. 267; Galpin v. Barney, 37 Vt. 627 (defendant said plaintiff ought to have his pay, but he was poor and could not pay).