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.
Lord Tenterden's act, and the American statutes which follow it most closely, do not include part payment, but refer solely to a new promise and to a new acknowledgment. Accordingly part payment may be proved in accordance with the ordinary rules of evidence, without reference to the statutory requirements.1 In some states the statute specifically provides that part payment is not included under such statute.2 Other statutes, either by their express terms or by the necessary effect of their phraseology, require written evidence of a part payment.3 By some some statutes it must be either written and signed by the debtor or his agent, or if unsigned, must be in the handwriting of the debtor.4 Such statute, though referring to new promises, has been held to apply to payments, even if an oral promise is made therewith,5 or to an unsigned credit indorsed upon the note by the agent of the maker.6 Under such statute an entry of payment made by one partner upon a partnership note after limitations has run is, in legal effect, a new contract in writing to pay the entire amount.7 Under a statute providing that " if any payment or new promise to pay shall have been made in writing on any note within or after the statutory period," an action may be commenced thereon at any time within the statutory period from the time of such payment or promise to pay, the court has expressly refused to decide whether the promise must be in writing,8 holding in the particular case that indorsement by a payee of a payment conceded to have been made was a sufficient compliance with such statute, even if it included payment.
7 King v. Davis, 168 Mass. 133; 46 N. E. 418; Tennessee Brewing Co. v. Hendricks, 77 Miss. 491; 27 So. 526.
8 Kelley v. Graham, 70 Ark. 490; sub nomine, Raines v. Graham, 69 S. W. 551; Roberts v. Leak, 108 Ga. 806; 33 S. E. 995. Account of guardian. Blakeney v. Wyland, 115 la. 607; 89 N. W. 16.
9 Coffin v. Kearney County. 114 Fed. 518.
10 Dearborn v. Grand Lodge, 138 Cal. 658; 72 Pac. 154.
11 Huston v. Jankowski, 76 Tex. 368; 18 Am. St. Rep. 57; 13 S. W. 269.
12 Houston v. Jankowski, 76 Tex. 368; 18 Am. St. Rep. 57; 13 S. W. 269.
13 O'Connor v. Waterbury, 69 Conn. 206; 37 Atl. 499.
14 Boone v. Colehour, 165 111. 305; 46 N. E. 253.
1 Gillingham v. Brown, 178 Mass. 417; 55 L. R. A. 320; 60 N. E. 122; Utica First National Bank v. Bal-lou, 49 N. Y. 155.
2 Pond v. French, 97 Me. 403; 54 Atl. 920; Mills v. Davis, 113 N. Y. 243; 3 L. R. A. 394; 21 N. E. 68; Marshall v. Holmes, 68 Wis. 555; 32 N. W. 685.
3 Gray v. Pierson, 7 Ida. 540; 64 Pac. 233; Perry v. Ellis, 62 Miss. 711.
4 Black v. Holland, 102 Ga. 523; 27 S. E. 671; Watkins v. Harris, 83 Ga. 680; 10 S. E. 447.
5 Poole v. Trimble, 102 Ga. 773;
29 S. E. 871.
6 Moore v. Moore, 103 Ga. 517;
30 S. E. 535.
7 Powell v. Fraley, -98 Ga. 370; 25 S. E. 450. (Hence under the parol evidence rule the partner cannot show an oral contract to release him on payment of one-half the amount of the debt.)
8 Willett v. Maxwell. 100 111. 540; 48 N. E. 473; affirming 68 111. App. 119.