tering into a contract, it is impossible to refer to the cases to which our attention has been called, without seeing that they establish that a duty was imposed upon the defendant [common carriers] * * by the custom of the realm so soon as they entered into the contract with the plaintiff, and independently of the terms of the contract itself. The plaintiff might, had he thought fit, have brought his action on the contract; but he was also entitled to sue the defendants for the breach of their common-law duty. Having chosen the latter course, he cannot, according to the authorities, be said to have brought an action of contract. * * * The action is an action on the case, not in form only, but in substance." See, upon the same subject, Tuttle v. Company, 145 Mass. 169, 13 N. E. 465; Rich v. Railroad, 87 N. Y. 382; 1 Ch. Pl. (16th Am. Ed.) 196.

In accordance with the foregoing authorities, it may be stated as a principle of law that, where the only relation between the parties is contractual, the liability of one to the other in an action of tort for negligence must be based upon some positive duty which the law imposes because of the relationship, or because of the negligent manner in which some act which the contract provides for is done; and that the mere violation of a contract, where there is no general duty, is not the basis of such an action. This being so, and the relation between the parties to this suit being that of landlord and tenant, and it having been decided in Towne v. Thompson, 68 N. H. 317, 44 Atl. 492, 46 L. R. A. 478, that no duty is imposed by law upon a landlord to make repairs upon leased premises for the benefit of his tenant or a member of the tenant's family, it follows that the present action cannot be maintained because of the mere failure of the defendant to keep her agreement to repair. In fact, it is generally held that a tenant, a member of his family, or his guest, cannot sue a landlord in tort for personal injuries due to his omission to repair premises which have passed into the possession and control of the tenant, even if the landlord has agreed to make repairs. Shackford v. Coffin, 95 Me. 69, 49 Atl. 57; Tuttle v. Company, 145 Mass. 169, 13 N. E. 465; Davis v. Smith, 26 R. I. 129, 58 Atl. 630, 66 L. R. A. 478, 106 Am. St. Rep. 691; Schick v. Fleischauer, 26 App. Div. 210, 49 N. Y. Supp. 962; Frank v. Mandel, 76 App. Div. 413, 78 N. Y. Supp. 855; Stelz v. Van Dusen, 93 App. Div. 358, 359, 87 N. Y. Supp. 716; Kushes v. Ginsberg, 99 App. Div. 417, 91 N. Y. Supp. 216; Sherlock v. Rushmore, 99 App. Div. 598, 91 N. Y. Supp. 152; Boden v. Scholtz, 101 App. Div. 1, 91 N. Y. Supp. 437; Feary v. Hamilton, 140 Ind. 45, 39 N. E. 516; 1 McAd. L. & T. 438; Jones L. & T. § 592; 18 Am. & Eng. Enc. Law (2d Ed.) 231, 234; 24 Cyc. 1115.

The other contentions of the plaintiff may be disposed of without extended considera

tion. There was no evidence that would authorize a finding that the defendant repaired the defective ceiling and did the work in a negligent manner (Edwards v. Lamb, 69 N. H. 599, 45 Atl. 480, 50 L. R. A. 160; Pittsfield, etc., Co. v. Shoe Co., 71 N. H. 522, 533, 53 Atl. 807, 60 L. R. A. 116; Gill v. Middleton, 105 Mass. 477, 479, 7 Am. Rep. 548; Baird v. Daley, 57 N. Y. 236, 15 Am. Rep. 488; Boden v. Scholtz, 101 App. Div. 1), nor that the water which caused the ceiling to loosen and fall was due to a roof over which the defendant retained full control and which became leaky because of her failure to repair, even if it could be said that her control of the roof would impose upon her the duty to repair. Coupe v. Platt, 172 Mass. 458, 52 N. E. 526, 70 Am. St. Rep. 293; Cheeseborough v. Green, 10 Conn. 318, 26 Am. Dec. 396; Doupe v. Genin, 45 N. Y. 119, 6 Am. Rep. 47; Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255; Cole v. McKey, 66 Wis. 500, 29 N. W. 279, 57 Am. Rep. 293; Jones, L. & T. § 612; 18 Am. & Eng. Enc. Law (2d Ed.) 218. The nonsuit was properly ordered.

Exceptions overruled.

WALKER, J., did not sit. The others concurred.

(74 N. H. 270)

BARKER v. HEATH. (Supreme Court of New Hampshire. Hillsborough. June 4, 1907.)

1. LIMITATION OF ACTIONS-NEW PROMISE. A direct admission by a debtor within six years prior to the commencement of the action of a subsisting debt__ which he is liable and willing to pay is sufficient evidence of a new promise to bar limitations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 597.] 2. SAME-CONDITIONAL PROMISE.

If a promise to pay a debt is conditional, limited, or qualified, the statute of limitations will operate so far as it may in view of the condition, limitation, or qualification; the creditor being required to show that the qualification, condition or limitation has been fulfilled.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 604.] 3. SAME-PARTIAL PAYMENT.

Partial payment of a note by the maker under circumstances showing that he understood it was partial only, and which did not indicate an unwillingness on his part to pay the balance, is evidence from which, if there is nothing to control it, a jury should find a new promise, tolling limitations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 642, 643.] 4. SAME-EVIDENCE-INDORSEMENTS.

Indorsements on a note will not be received as evidence of partial payments to toll limitations, unless shown to be in the handwriting of the maker of the note, or their genuineness and truthfulness is established by other evidence. [Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 639.] 5. SAME CONDITIONAL PROMISE.

Where, in an action on a note, plaintiff relied on a new promise to toll limitations pleaded, and the promise proved was that defendant

would pay the debt as soon as she could or as soon as she was able, an instruction that that was an absolute and unqualified promise was

erroneous.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33. Limitation of Actions §§ 604-609, 611.] 6. SAME EVIDENCE OF ABILITY.

Where a debtor's promise to pay as soon as she could was relied on to toll limitations, evidence of an antenuptial contract between her and her husband, since deceased, by which she obtained certain property, was admissible to prove her pecuniary ability.

7. SAME.

Where a promise to pay a debt as soon as the debtor was able was relied on to toll limitations, and no issue as to her ability prior to her marriage in 1905 was tendered, it was not error to exclude evidence that for several years prior to that time she was physically unfit for hard labor, and when she made certain payments did not thereby intend to keep the note alive.

Transferred from Superior Court; Pike,

Judge.

Action by Levi Barker against Kate P. Heath on a note for $734.52, dated April 1, 1895, and payable to plaintiff on demand with interest. Suit was brought November 2, 1905, and defendant pleaded limitations, to which plaintiff replied, alleging new promise within six years. A verdict was rendered in favor of plaintiff, and the case was transferred to the Supreme Court. Exceptions sustained.

The following indorsements are upon the back of the note: April 10, 1895, $5; September 19, 1895, $5; October 16, 1895, $5; December 16, 1895, $5; September 19, 1896, $3; August 25, 1898, $2; December 26, 1899, $2. The plaintiff testified as follows: He received the foregoing sums from the defendant at the dates mentioned, and made the indorsements in her presence. At the time of the last payment the defendant said, in substance, that it was all she could give him at that time; that she would give him more as soon as she could, and would pay him just as fast as she could; that she was having a hard time, her boarders had left her, her eyes were troubling her, and she had to go to an oculist; that it was taking her money, but she would pay him as fast as she could. At the dates of the indorsements she always promised to pay as fast as she could and as soon as she was able, and wanted him to be easy with her. In a conversation subsequent to December 26, 1899, she said she had no money for him then, but would give him some just as soon as she could. The defendant's evidence tended to prove that she did not make either of the last two payments indorsed on the note; that she did not promise the plaintiff at any time that she would pay the balance of the note, because she knew it was impossible for her to do so; and that she did not promise him on December 26, 1899, or at any subsequent date, that she would pay the note as soon as she was able, or as soon as she could, or promise anything to that effect.

At the close of the plaintiff's evidence the defendant moved for a nonsuit, on the ground

that there was no evidence that the plaintiff could pay, or was able to pay, the note when the action was brought. The motion was denied, subject to exception. The defendant's offer to prove that she was physically unfit for hard labor for several years prior to November 22, 1905, was rejected, subject to exception. Upon cross-examination, the plaintiff's counsel was permitted, subject to exception, to ask the defendant whether she did not intend to keep the note alive by her payments and promises in 1897, 1898, and 1899, to which she replied: "I paid him what I could. I knew I never could pay it in the world, and I don't know why I should promise to pay it when I knew I never could. When he came to me for money I gave him what I could." The defendant married early in the fall of 1905, and her husband died a few months later. The plaintiff put in evidence an antenuptial agreement between the defendant and her husband, in effect, that the latter would leave the defendant, by will, certain real estate, and also the provision of the husband's will by. which a devise of real estate, worth $5,500 or $6,000 and incumbered for about $3,500, was made to the defendant. The defendant excepted to the testimony, on the ground that it was uncertain, under the agreement and will, whether she took a life estate or a fee in the realty. Before the evidence was closed, the court came to the conclusion that the law of this state relating to the character of the defendant's new promise was as stated subsequently in the charge to the jury. The counsel, understanding that such was the court's view of the law, made no comments in their closing arguments to the jury upon the evidence relating to the defendant's ability to pay. The defendant moved to set aside the verdict because this evidence, not being excluded, excepting by the effect of the charge, was incompetent and prejudicial. The motion was denied, subject to exception.

The court, after instructing the jury that their verdict must be for the defendant unless she, by her acts or promises, gave the plaintiff to understand within six years that she recognized the existence of the note and intended to pay it, further instructed them that the promise must be absolute, or, if conditional, that the condition must have been fulfilled; and that a promise by the defendant to pay as soon as she could, or when she was able, would be regarded by the law of this state as an absolute promise. Continuing, the court said: "So if you find that within six years she said, 'I will pay it as soon as I can,' or 'as soon as I am able,' then you will regard it as having been an absolute and unqualified promise on her part." To this portion of the charge the defendant excepted.

Wason & Moran, for plaintiff. Doyle & Lucier, for defendant.

CHASE, J. It was held in the earlier cases of assumpsit in this state that, while a

if they had expressly declared their present inability. However this may be, it is quite clear that if the plaintiff's testimony in the present case is believed, the defendant's willingness to pay the balance of the note depended upon ber pecuniary ability to pay it. Recent cases fully justify this view. Stowell v. Fowler, 59 N. H. 585; Rossiter v. Colby, 71 N. H. 386, 52 Atl. 927. See, also, Atwood v. Coburn, 4 N. H. 315, 318; Betton v. Cutts, 11 N. H. 170; Manning v. Wheeler, 13 N. H. 486. The defendant's exception to the charge of the court must therefore be sustained.

The testimony introduced by the plaintiff relating to the antenuptial agreement between the defendant and her late husband, and the provision of the husband's will in her favor, had a tendency to prove that she possessed pecuniary ability. The nature of the estate was material only as showing the extent of such ability. The testimony was relevant to the issue and competent. It, in connection with the other evidence introduced by the plaintiff, justified the denial of the defendant's motion for a nonsuit. The foregoing views of the law render immaterial the exception to the denial of the defendant's motion to set aside the verdict.

No error is perceived in the ruling relating to the rejection of the defendant's offer to prove her physical condition prior to November, 1905, or to the ruling relating to the defendant's cross-examination. It would seem, at least, that the court, in the exercise of his discretion, might properly rule as he did. Exceptions sustained in part. Verdict set aside. All concurred.

Under Pub. St. 1901, c. 67, § 1, defining a highway as a way that has been used for public travel for 20 years, etc., highways by user arising from the uninterrupted use of land for public travel exist notwithstanding sections 2, 12, and 13 prescribe methods for laying out highways.

2. EVIDENCE-SECONDARY EVIDENCE.

Where a highway is both a highway of record and by user, proof of user is not inadmissible as an attempt to prove a highway by secondary evidence.

3. HIGHWAYS-ESTABLISHMENT STATUTES

CONSTRUCTION.

Pub. St. 1901, c. 67, § 1, providing that highways are only such as are laid out as prescribed by statute or as have been used for public travel thereon, other than travel to and from a toll bridge or ferry, for 20 years, when considered in connection with its history embodied in Rev. St. 1843, c. 53, § 7, Comp. St. 1854, c. 57, § 7, and Gen. St. 1867, c. 69, § 8, means that when land is thrown open to the public the way will not become a public highway, however long it may be used, provided the travel on it is limited to travel to and from a toll bridge or ferry; but if it is used for general public travel, though not exclusively for such travel, it may become a public highway by 20 years' user.

67 A.-15

4. SAME.

Proof that a highway has been used for general public travel for more than 20 years, and that it has been kept in repair by the publi authorities, warrants the conclusion that it is a public highway by user under Pub. St. 1901, c. 67, § 1, declaring that highways are such as have been used for public travel for 20 years.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, §§ 6-12.]

5. SAME-OBSTRUCTIONS-INJURIES.

Where one placing an obstruction in the traveled part of a highway should have anticipated that horses of travelers on the highway might become frightened and uncontrollable, and that his act in placing the obstruction in the highway might render it dangerous, the fact that a traveler's horse became, without his fault, uncontrollable, was a mere condition which should have been provided against, and the traveler was entitled to recover for injuries sustained in consequence thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 509.]

6. SAME.

A highway was located beside the tracks of a railway on which locomotives were liable to be. The horse of the traveler became frightened at a locomotive, and the traveler was injured by an obstruction placed in the highway so as to narrow the traveled part thereof. Held, that the person placing the obstruction in the highway was negligent in not anticipating that horses of travelers might become frightened, and in not providing against such a contingency. [Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 509.]

7. SAME.

A traveler on a highway need not to hold one placing an obstruction in the highway liable for an injury sustained in consequence thereof, show that the injury was due solely to the ob struction, if his conduct in no way contributed to the injury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, § 509.]

Transferred from Superior Court; Stone, Judge.

Action by Alice L. Harriman against Moore & Co. There was a verdict for plaintiff, and the cause was transferred from the superior court. Exceptions overruled.

Case for personal injuries alleged to have been caused by the obstruction of a public highway in the town of Gorham, upon which the plaintiff was traveling with her daughter. Trial by jury and verdict for the plaintiff. The evidence tended to prove the following facts: The defendants were engaged in putting in a system of waterworks under a contract with the town of Gorham, and had made excavations near the scene of the accident for the purpose of laying waterpipes. At the time of the accident the plaintiff's horse had become frightened at locomotives on the tracks of the Boston & Maine Railroad in the vicinity, and had shied to the right. The plaintiff's daughter, who was driving, was unable to prevent the horse from shying, or from passing to the right of teams directly ahead. She guided the horse between the first team and a line of rocks lying on the right-hand side of the road, and probably would have safely passed the second team if the right-hand wheel of the wagon had not