A promise to pay a specified part of a debt or to pay the debt in instalments or without interest or in any other way than that for which the debtor at the time stands bound, if made upon condition that the creditor shall agree to accept the payment in satisfaction of his claim is an offer to compromise, and by its terms conditional on that agreement, that is, it is conditional on acceptance by the creditor. Though it may indicate that the debtor acknowledges a debt (an offer to compromise will not necessarily admit even this) no new promise to pay can be inferred except on the terms stated. The promise therefore can be binding only if the condition is complied with. If the offer is unaccepted the debtor's liability is not extended or removed.49 If, however, the debtor merely give a new note which win amount to the same thing you mentioned. Will you let me know if that will do?" The creditor refused to take a new note unless at a higher rate of interest. The statute was held not tolled by the defendant's letter. Other offers to compromise held to have no effect unless accepted by the creditor may be found in Buckmaster v. Russell, 10 C. B. (N. S.) 746 (an offer to pay in annual instalments if creditor agreed); Caw-ley v. Furnell 12 G. B. 201; Andrew v. Kennedy, 4 Okl. 625, 46 Pac. 485.
47See further, supra, Sec.Sec. 157, 158.
48 Big Diamond Milling Co. v. Chicago etc. Ry. Co., (Minn. 1919), 171 N. W. 799.
49Cawley v. Furnell, 12 C. B. 291; Buekmaster v. Russell, 10C. B. (N. S.) 745; Bell v. Morrison, 1 Pet. 351, 7
L. Ed. 174; Edwards v. Bates County, 55 Fed. 436; Duffie v. Phillips, 31 Ala. 571; Pearson p. Darrington, 32 Ala. 227, 258; Brenneman v. Edwards, 55 Iowa, 374, 7 N. W. 621; Mar-cum's Adm. v. Terry, 146 Ky. 145, 142 S. W. 209, 37 L. R. A. (N. S.) 885; Lackey v. MacMurdo, 9 La. Ann. 15 (cf. Kohn v. Davidson, 23 La. Ann. 467); Smith v. Eastman, 3 Cuah. 355; Weston v. Hodgkins, 136 Mass. 326; Morris v. Hailehurst, 30 Md. 362; Throop v. Russell, 145 Mich. 482, 108 N. W. 1013; Chambers v . Rubey, 47 Mo. 99, 9 Am. Rep. 318; Atwood v. Cobura, 4 N. H. 315; Weare v. Chase, 58 N. H. 225; Conn. Trust Co. v. Wead, 172 N. Y. 497, 65 N. E. 281; Hartley v. Requa, 17 N. Y. Misc. 74,39 N. Y. S. 846; Heaton v. Leonard, 69 Hun, 423, 23 N. Y. S. 469; Matter of Narganes, promises to pay a specified part of his indebtedness, implying that he will pay no more but making no request that the payment shall be accepted as full satisfaction, or that any other agreement or performance be made by the creditor, the promise is unconditional and no acceptance by the creditor is necessary.50 Again, the debtor's promise to pay a barred debt on a fair construction may mean simply that the debtor will pay part at once without any implication that he will not pay more ultimately. Such a promise, unless the facts warrant the positive inference that the debtor acknowledges the balance as a continuing debt, will not have the effect of reviving the whole debt.51 If such an inference is justified the whole debt will be revived, though the debtor's liability for the remainder should not arise until the lapse of a reasonable time. If an unqualified acknowledgment is accompanied by a request to the creditor to abate a portion of the claim, this request will not prevent the revival of the debt; 52 nor will an inquiry as to what the debtor will take in full payment.53 A promise to pay a debt in instalments involves the same question as a promise to pay in part so far as the question of acceptance is concerned. If acceptance is made or is unnecessary the debtor becomes liable according to the terms of his promise, but only on those terms, even though some of the instalments are paid.54
161 N. Y. App. D. 563, 666, 146 N. Y. 8. 922, affd. 213 N. Y. 669, 700, 107 N. E. 1082, 108 N. E. 1101; Andrew v. Kennedy, 4 Okla. 625, 46 Pac. 485; Wolfe v. Fleming, 1 Ired. 290; Gest v. Heiskcll, 5 Rawle, 134; Farley v. Kus-tenbader, 3 Pa. St. 418; Reynold Iron Works v. Mitchell (Tex. Civ. App.), 27 S. W. 508; Goldstein v. Gang (Tex. Civ. App.), 32 S. W. 185; Aldridch v. Morse, 28 Vt. 642; Slack v. Norwich, 32 Vt. 818. In jurisdictions where it is not requisite that an admission of indebtedness shall imply a new promise (see supra, Sec. 167), in order to make it effective, an offer to compromise coupled with an admission of indebtedness is sufficient. Pracht v. MuNee, 40 Kans. 1, 18 Pac. 925; Disney v. Healey, 73 Eans. 326, 85 Pac. 287. (Cf. Brenneman v. Edwards, 55 Iowa, 374, 7 N. W. 621; Walker v. Cruikshank, 23 La. Ann. 262; Graham v. Keys, 29 Pa. 189.) See also Austin v. Bostwick, 9 Conn. 496, 25 Am. Dec. 42.
50 In Strong v. Andros, 34 Dist. Col. App. 278, the debtor promised to pay small monthly instalments until the debt should be liquidated. This was held to prevent the bar of the statute. In Foster v. Smith, 52 Conn. 449, the court said: "A promise to pay may be absolute although it be to pay on time or in instalments." So in McDonald v. Grey, 29 Tex. 80, the court said: "An unconditional acknowledgment of a part of the debt, although coupled with a denial of liability for the remainder and a refusal to pay it, if not made as a qualification of the admission, will take so much of the debt as is acknowledged out of the statute. The law will imply a promise to pay the amount admitted to be due. It is not incumbent upon the creditor to show that he has admitted the validity of the objections of the debtor to that part of the debt which he repudiates, or to show that he had relinquished bis claim to it." But see Weare v. Chase, 58 N. H. 225. In North Carolina it is held that a new promise to be effectual must be to pay the whole amount of the debt. Greenleaf v. Norfolk Southern R. Co., 91N. C. 33; Wells v. Hill, 118 N. C. 900, 24 8. E. 771.
51 In Lambert v. Doyle, 117 Ga. 81, 43 S. E. 416, where the debtor wrote to the creditor "It will be impossible to pay you anything until after the first of June. I will send you a check for something then. Hope to be able to clear your account quick" the debt was held not revived.