2004-253, A&B LUMBER COMPANY, LLC v. GEORGE VRUSHO & a.

with the plaintiff to build a barn and riding arena on the property. Under the defendants live in Massachusetts. In May 1995, Paul entered into a contract lives on the property, wh ere he operates and maintains a horse farm. The appeal. The defendants own twenty - eight acres in Northwood. Their son, Paul, The trial court found the following facts, which were not contested on

Lumber Company, LLC. We reverse. judgment on a claim of unj ust enrichment brought by the plaintiff, A&B order of the Superior Court (McGuire, J.) denying their motion for summary GALWAY, J. The defendants, George and Beverly Vrusho, appeal an

brief and orally), for the defendant s. Law Office of Joshu a L. Gordon, of Concord (Joshua L. Gordon on the

the brief and orally), for the plaintiff. Hinckley, Allen & Snyder LLP, of Concord (Christopher H. M. Carter on

No. 2 004 - 253 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

liability indicating a willingness to pay the debt” can toll the sta tute of id. at p. 2 286 - 87. We have held that “[a] maker ’s payments or acknowledgments of same contract. We disagree. A new promise is only good as to the maker. See against the defendants is also timely because this action is based upon the because of his renewed promises to pay, then its unjust enrichment action The plaintiff argues that if a contract action against Paul would be timely

willingness to pay.” Gallagher, 144 N.H. at p. 2 287. debt] does not constitute an acknowledgment of an existing de bt and a unqualified. Soper v. Purdy, 144 N.H. 268, 270 (1999). “[A]wareness [of a 144 N.H. 284, 287 (1999). Specifically, the admission must be direct and unpaid debt that the party is then wil ling to pay.” Premier Capital v. Gallagher, more than a recognition of debt; it must be an admission of liability for an 134 (1833). “To toll the limitations period, an acknowledgment of debt must be that the party is liab le and willing to pay. Exeter Bank v. Sullivan, 6 N.H. 124, however, by a party’s acknowledgement of a subsisting debt with an admission (2001); see also RSA 508:4, I. The statute of limitations period may be tolled, th ree years of the contract’s breach. See Coyle v. Battles, 147 N.H. 98, 100 Under New Hampshire law, a contract claim must be brought within

enrichment claim against the defendants. We conclude that it did not. in June p. 2 2000 tolled the statute of limitations on the plaintiff’s unjust The sole question before us is w hether Paul’s promise to pay the plaintiff

Marikar v. Peerless Ins. Co., 151 N.H. 395, 397 ( p. 2 2004). We review the trial court’s application of the law to the facts de novo.

and rendered the action timely. tolled the statute of lim itations on the plaintiff’s action against the defendants (1997). The trial court found, however, that Paul’s June p. 2 2000 promise to pay was brought more than six years after the April 1997 breach. See RSA 508:4, I groun d that the plaintiff’s unjust enrichment claim was time - barred because it The defendants filed a pre - trial motion for summary judgment on the

plaintiff sued the defendants for unjust enrichment. $ p. 2 210,000 debt. Again, Paul failed to satisfy his debt, and in May 2003, the stipulation with Paul in June 2000, in which Paul acknowledged his now subsequently made no payments. The plaintiff then entered into another in favor of the plaintiff in the amount of $145,000 with 8% interest. Paul on the contract. The plaintiff and Paul then entered into a stipulated judgment any payments on the contract. In April 1997, the plaintiff sued Paul to rec over The plaintiff supplied the materials and services, but Paul did not make

interest in six monthly installments, the last of which was due in May 1996. terms of the contract, Paul agreed to pay a princi pal sum of $1 p. 3 39,8 p. 2 20 with 9% 3

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

Accordingly, the plaintiff’s claim was untimely. nothing to admit that they were lia ble for it and were willing to pay it. N.H. at 270. Here, even if the defendants were aware of Paul’s debt, they did required is an admission of liability and a willingness to pay. See Soper, 144 Mere rec eipt of the benefits of a contract does not suffice. What is

with Paul increased the value of the defendants’ property. the contract. The plaintiff argues that tolling is required because the contract “based on benefits the [d]efendants accepted, and continued to accept” from unjust enrichment claim against the defendants i n part because the claim was The plaintiff contends that the statute of limitations is tolled on the

487, there is no basis to hold that Paul’s actions bound the defendants. same debt, see G allagher, 144 N.H. at 286 - 87; see also Theodorou, 91 N.H. at acknowledgment of a maker or a joint debtor to bind other obligors upon the show, that Paul was the defendants’ agent. Where the law does not permit the promise to pay. Moreover, the plaintiff does not argue, and the record does not defendants communicated anything to the plaintiff that would amount to a Paul or any subsequent stipulations. The plaintiff does not allege that the defendants were not parties to the original contract between the plaintiff and impliedly promised to pay the plaintiff. It is also undisputed that the In this case, it is undisputed that the defendants never expressly or

(1941). of the other debtor. Merrimack Loan Co. v. Theodorou, 91 N.H. 487, 487 binds only that deb tor and does not suspend the running of the statute in favor joint debtors, we have held that an acknowledgment of the debt made by one debt. See Gallagher, 144 N.H. at 286 - 87 (emphasis added). Where there are limitations on an action against the maker but not against a guarantor of the