This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The language used by the debtor must be such as to show his intention to pay the debt referred to.1 If the debtor says that he is unable or unwilling to pay a debt, the fact that he does not deny the validity of the debt does not, according to the weight of authority, constitute an implied promise to pay it.2 Thus the statement " I have done my best to raise some money, but 1 cannot do it now. . . . But some money we will send you but not all because we must live first," has been held not to waive the bar of the statute.3 So a statement by the debtor that he would pay the debt if he were able, is not sufficient.4 So a statement by a debtor that he is trying to collect a claim due to himself and that he can do no more than pay his creditor when he collects such debt is not sufficient.5 So statements "I know we are owing you and I am anxious it should be settled," and " It is not our wish to keep from you whatever may be your just due," are insufficient as a new promise if coupled with a statement of financial inability to pay.6 In opposition to this view it has been held that a debtor's statement, " I can not pay it now as I have two members of my family now to support," is an implied promise to pay the debt some time in the future.7 According to the weight of authority, the promise to pay when he can, is not a sufficient promise to revive a barred debt.8 Where a debtor wrote, "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," such statement was not sufficient to revive the debt.9 A promise to pay whatever the debtor is able to pay, is insufficient.10 A promise to " pay him something on account in a few days,"11 has been held sufficient. A promise to pay when able may, however, be enforceable as a new contract of which the debtor is liable when he becomes able.12 An action cannot be maintained against him until he is in fact able to pay.13 The statute runs against such new promise from the time when the debtor becomes able to pay and not from the time that he makes new promise.14 A statement by a debtor that he has no money at that time, and will not have any until he sells a specified piece of property, and that then it will be all right between them, does not create any liability enforceable by the creditor until such property is sold.15 A promise by the debtor to pay a specified sum, which is less than the entire debt, revives his liability as to the sum thus indicated,16 but does not revive his liability as to the entire amount of the original debt.17 So the statement that the debtor thought that his former partner had " paid that debt but as he did not settle it I'll see into it some time," did not amount to a new promise to pay the debt, as it might mean that he would try to make his partner pay it.18 Only voluntary acts of the debtor can amount to a new promise. Thus the entry of a judgment on notes is not such a new promise as to extend limitations on the mortgage securing the debt.19 If, however, the debtor expresses in unequivocal language his intention of paying the debt, the fact that with the consent of .his creditor he fixes the time of payment in the future, as at the death of the debtor,20 or that he agrees to satisfy the debt by a legacy in his will,21 does not prevent such promise from operating as a waiver of the bar.
2 Wald v. Arnold, 168 Mass. 134; 46 N. E. 419; Manning v. Wheeler, 13 N. H. 486; Pierce v. Seymour, 52 Wis. 272; 38 Am. Rep. 737; 9 N. W. 71.
3 Krueger v. Kreuger, 76 Tex. 178; 7 L. R. A. 72; 12 S. W. 1004.
4 Manning v. Wheeler, 13 N. H. 486.
5 Cook v. Farley. 1 Neb. Unofficial 540; 95 N. W. 683,
6 Bell v. Morrison, 1 Pet. (U. S.) 351.
7 Beeler v. Clarke, 90 Md. 221; 78 Am. St. Rep. 439; 44 Atl. 1038.
8 Richardson v. Bricker, 7 Colo. 58; 49 Am. Rep. 344; 1 Pac. 433; Halladay v. Weeks, 127 Mich. 363; 89 Am. St. Rep. 478; 86 N. W. 799; Wilcox v. Williams, 5 Nev. 206; Parker v. Butterworth, 46 N. J. Law, 244; 50 Am. Rep. 407; Cooper v. Jones, 128 N. C. 40; 38 S. E. 28.
9 Lambert v. Doyle, 117 Ga. 81; 43 S. E. 416.
10 Nelson v. Hanson, 92 la. 356; 54 Am. St. Rep. 568; 60 X. W. 655; Boynton v. Moulton, 159 Mass. 248; 34 N. E. 361.
11 Wileox v. Clarke, 18 R. I. 324; 27 Atl. 219.
12 St. Louis, etc., Ry. v. Rice, 170 111. 354; 48 N. E. 974; affirming, 69 111. App. 244; Jenckes v. Rice, 119 Ta. 451; 93 N. W. 384; Mumford v. Freeman. 8 Met. (Mass.) 432; 41 Am. Dec. 532; Scott v. Thornton, 104 Tenn. 547; 58 S. W. 236; Gar-denliire v. Rogers (Tenn. Ch. App.), 60 S. W. 616.
13 Rodgers v. Byers, 127 Cal. 528; 60 Pac. 42.
14 Scott v. Thornton, 104 Tenn. 547; 58 S. W. 236.
15 Keenan v. Keenan, 20 R. I. 105; 37 Atl. 632.
16 McKisson v. Davenport, 83 Mich. 211; 10 L. R. A. 507; 47 N. W. 100; Mooar v. Mooar, 69 N. H. 643; 46 Atl. 1052.
17 Mooar v. Mooar, 69 N. H. 643; 46 Atl. 1052.