¶1(dissenting). The sole question presented-for determination in this ease is whether the trial court erred in directing a verdict in favor of the defendant. The answer to that question depends upon whether there was any substantial evidence tending to show that the defendant had made a new promise to pay a debt which had been discharged in bankruptcy. Of course if there was any substantial evidence tending to establish such promise, the question wheth*360er such promise was in fact made should have been submitted to the jury-
¶2There is no question but that a new promise to pay a discharged debt must in fact be an actual promise. It is not sufficient that the-debtor expresses a hope, desire, or expectation to pay the debt. He must actually promise to pay it. The promise must be distinct and unequivocal, such as to indicate on the part of the debtor an intention to assume an obligation to pay the debt. But it is not necessary that any particular form of words be used. Where the language used is susceptible of different meanings, it may be a question for the jury to-determine which is the correct one, and whether the words used did in fact constitute a new promise. Shaw v. Burney, 86 N. C. 331, 41 Am. Rep. 461; Bennett v. Everett, 3 R. I. 152, 67 Am. Dec. 498; Pratt v. Russell, 7 Cush. 462. In Shaw v. Burney, supra, the proof was “that the debtor said: ‘The debt is an honest one,—I always intended to pay it;’ and .that later, when a note was presented to him for execution in settlement of the debt, ho refused to sign the note, claiming that a certain recital therein was untrue, but said: ‘It is an honest debt and I will pay it certain.’ ” The superme court of North Carolina held that it was a question for the jury to determine whether, under all the circumstances, the words constituted a new promise.
¶3In Pratt v. Russell, supra, a witness testified that, at plaintiff’s request, he called on defendant, with the accounts between plaintiff and defendant, and “told the defendant that the plaintiff wanted him to do something about this note; that she would be glad to have him give her a new note; that she wanted the old note in such shape that she could get it some time or other; that the defendant answered that he was not willing to put the principal and interest into a new note, but said that he had always said, and still said, that she should have her pay.” The defendant contended that no express or unequivocal promise to pay the note could be implied from the language of the defendant as testified to by the witness, and requested that the trial court so instruct the jury. The trial court denied defendant’s request for such instruction. In submitting the case to the jury the court instructed: That to entitle the plaintiff to recover, he must prove a distinct and unequivocal promise to pay the note by the defendant; that no precise form of words was necessary, but that when words used were relied on as *361showing such promise, they must be words capable of meaning or expressing such promise, and must appear to have been used by the party with the intention of making a promise to pay the noto; that it was for the jury to say whether the defendant intended, by the words used, to promise to pay the discharged debt. The .Massachusetts supreme court held the instructions to be correct. The opinion of the court, which was written by the celebrated Chief Justice Shaw, reads
¶4“We cannot perceive any objection to the directions given to the jury. Undoubtedly to revive a debt barred by a statute discharge, no express promise is necessary, in contradistinction to a promise implied from an acknowledgment of the existence of the debt. So the judge directed. But the evidence tended to prove two forms of expression used by the defendant, on the same occasion,—one declining to give a'written' promise, the other amounting to a verbal promise. The words, as he-must have used them in the present tense, in answer to a claim of payment to be made by him, U have always said, and still say, that she shall have her pay/ are capable of being construed a promise, but might be counteracted by the other expression. It was for the jury to decide upon the credit of the witness, and the accuracy of his recollection, and thus decide what was said.”
¶5In the case at bar the defendant Chamberlin testified:
Q. Now Mr. Chamberlin after April, 1914, you have, on repeated occasions, told Mr. Holden that you intended or were going to pay this note ? ~ " ■
A. When I could.
Q. Mr. Chamberlin, you say you have since you were adjudicated a bankrupt in 1914 promised Mr. Holden to pay this debt?
A. If I was able to do so.
Q. You have promised to pay this debt, have you not ?
A. If I was able to do so; that has always gone in.
Q. Now, Mr. Chamberlin, didn’t you tell him at different -times after April, 1914, that you intended to pay this debt, and that you had already paid other debts which were provable in bankruptcy and upon which dividends had been paid in bankruptcy?
A. I told Mr. Holden repeatedly that when I was able to pay the debt, or if I could pay it, I would do so. Mr. Holden has been a friend of mine for a number of years. It is too bad he had to lose the *362money, I couldn’t help it, and in making that promise, if I am able to do so, I intend to carry it out. I don’t know what else I can say. I told Mr. Holden I considered it a personal debt, and that as soon as I could I would pay it.
¶6The plaintiff, Holden, testified that after defendant had been adjudged a bankrupt he (plaintiff) had a conversation with defendant at defendant’s office in Chary, and that in such conversation, defendant said: "I will pay you; I calculate to pay you, and I will pay it. I could pay you two or three hundred dollars this fall, and that much a year from now and in three years’ time I may clean it all up.” The defendant admitted that upon a certain preliminary examination the following question was propounded to, and the following answer given by, him relating to the conversation referred to by the plaintiff:
“Q. You told Mr. Holden at that time that you would pay him whether the bankruptcy paid out or not?”
“A. I surely did, and Mrs. Chamberlin told him also.”
¶7It is true that after this conversation was had and this promise given plaintiff sought to induce defendant to give security for the payment of the debt, i. e., give a note signed by some responsible surety; and that defendant refused to comply with this request. It is not likely that plaintiff would have requested that defendant obtain a surety, unless he was of the belief that defendant had in fact promised to pay the debt. Plaintiff apparently assumed that defendant had promised or agreed to pay the debt and wanted this promise or agreement secured in the manner which he. proposed. I do not see how the demand for security affected the promise to pay, if a promise was in fact previously made. It will be noted that in Shaw v. Burney, 86 N. C. 331, 41 Am. Rep. 461, and Pratt v. Russell, 7 Cush. 462, also, certain requests made by the creditor were refused. I do not believe that it can be said as a matter of law that there was no new promise in this case. See Shaw v. Burney and Pratt v. Russell, supra; Bennett v. Everett, 3 R. I. 152, 67 Am. Dec. 498. See also Sundling v. Willey, 19 S. D. 293, 103 N. W. 38, 9 Ann. Cas. 644.