A debtor may make an offer to compromise any claim against him, and a new conditional promise to pay a debt will be such an offer if some performance or promise is requested as the consideration or exchange for the debtor's promise. Such an offer, like any other offer to contract, will require acceptance according to its terms within a reasonable time in order to make it binding.44 On the other hand, just as a promise where there is no antecedent debt may be conditional in its terms without requesting a performance of the condition or a counter-promise in return,45 so a new promise by a debtor may be conditional in its terms and yet gratuitous, except for the antecedent indebtedness. In determining to which of these two classes a given promise belongs, it is important to consider both the terms of the promise, and all surrounding circumstances.46 If the new promise by the debtor, though
42 Rankin v. Anderson, 24 Ky. L. Rep. 647, 69 S. W. 705. It will be noticed that the happening of this condition is wholly within the power of the creditor, and the decision of the court apparently gives him power to postpone indefinitely the period of limitation. As to this, see infra, Sec. 183.
43 Tebo v. Robinson, 29 Hun, 243; Scott v. Thornton, 104 Tenn. 547, 58 8. W. 236.
44 Philp v. Hicks, (Miss. 1917), 73 So. 610.
45 See supra, Sec. 112.
46 In Woolwine v. Starrs, 148 Cal. 7, 82 Pac. 434, 113 Am. St. Rep. 183, the debtor requested the creditor for an extension of time for one year, and accompanied the request with a written promise by the guarantor to pay the note at the expiration of the year.
It was held that this promise of the guarantor's was conditional upon the acceptance by the creditor of the proposition for a year's extension. So a letter from the debtor stating in substance that be is unable to pay the note in question, but offering to buy it if the holder would sell it for some small sum which the debtor could afford to pay is merely an offer, and if unaccepted does not extend the debtor's liability. Connecticut Trust Co. p. Wead, 172 N. Y. 497, 65 N. E. 281, 92 Am. St. Rep. 756. Somewhat similar in its facts is Throop v. Russel 145 Mich. 482,108 N. W. 1013. In Gray v. Day, 109 Me. 492, 84 Atl. 1073, 43 L. R. A. (N. S.) 535, a debtor replying to a request for part payment to keep the creditor's claim good, replied "I don't see how I can pay anything, but I will conditional, is not an offer there seems no reason on principle why an acceptance should be required.47 Nothing is asked from the creditor. Like a new absolute promise, the new conditional promise is a pure gratuity, and the fact that it is a less extensive gratuity than it would have been if unconditional seems no reason for denying it effect accordingly to its terms.48