9 Haw. 272 | Haw. | 1893
This is an action of assumpsit to recover the balance due on a promissory note payable on demand made by Tai Lung Co. in favor of L. Ahlo for $764.20, dated the 2d-April, 1883. It appears that on the 14th June, 1885, the defendant, then being a storekeeper in Koliala, Hawaii, under the name of Tai Lung & Co., made an assignment of all his property to Elimo Pake and C. Bolte, to realize upon and distribute among his creditors pro rata. The assignees sold the property and paid dividends, to the creditors in 1886, one of 15 per cent, on February 11th, and the final one of 7¿- per cent, on the 16th July. On these dates H. Hackfeld & Co. were owners of the note in question, by delivery and indorsement in blank, L. Ahlo, waiving notice, protest and demand, and this firm indorsed on the note, “ Bec’d 1st dividend of estate of T. L. & Co. Feb. 11, ’86 — $145.52; July 16, ’86 — $72.76.” The note also bears the statement written across its face, “Settled July 17, ’86, by L. Ahlo. H. H. & Co. by E. Suhr;” and it thereby became again the property of the plaintiff. The sum claimed in the declaration amounted, with interest to 7th June, 1892, when the declaration was sworn to, to $929.89. The statute of limitations was pleaded, and it had run against the note at the date of suit (six years from the date of the note being April 3, 1889), unless the last payment made, 16th July, 1886, took the note out of the statute. The jury found a verdict for the defendant.
The plaintiff’s bill of exceptions raises as the first point, that the trial Judge of the Circuit Court, First Circuit, in giving the second instruction to the jury asked for by the plaintiff having modified it, did not observe the terms of the statute governing such cases, to wit, Sec. 5, Chap. 56, Laws of 1892. The charge asked for was :
“If the jury believe from the evidence that defendant, or any one on his behalf, and with his sanction, made a payment on account of said note within six years prior to
The addition made by the Court was good law. Angelí on Limitations, Sec. 240, says, “An acknowledgment or new
We will next consider the exception taken to the granting of the defendant’s request for instruction,, “ that payments on account on plaintiff’s note made by defendant’^ assigneewithout defendant’s authority are not evidence of a new promise on the part of defendant and will not take the note out of the- operation of the statute of limitations.”
The great weight of authority sustains this proposition. Reed vs. Johnson, 1 R. I., 81. The- head note is, “ A deed of assignment made by a debtor for the payment of certain debts and for the payment of his debts generally, and partial payments made by the assignee to a creditor, is not sufficient evidence of a new promise to avoid the statute of limitations.” The facts of this case are very similar to those of the one at bar. They were even more favorable to the plaintiff for the assignor had, after the sale of the property and before payment of the dividend,, designated to the assignee the note in suit as one of the claims provided for by the assignment-The court in a well considered, decision hold that the assignee for the benefit of creditors is not an agent of the assignor, but an independent contractor, responsible to the creditors for the proper performance of his trust. In Campbell vs. Baldwin, 130 Mass., 200, it was said that “the ground, on which a part payment is held to take a case out of the statute is that such payment is a voluntary admission by the debtor that the debt is then due, which raises a new promise by implication to pay it or the balance. To have this effect it must be such an acknowlegment as reasonably leads to the inference that the debtor intended to renew his promise of payment.” “ In the case at bar the plaintiff
In Roscoe vs. Hale, 7 Gray, 274; Stoddard vs. Doane, id. 387, and Robinson vs. Thomas, 13 Gray, 381, it was held that the insertion of a debt in a schedule of creditors, filed and sworn to by a debtor under proceedings in insolvency is not such an acknowledgment as will take the debt out of the statute of limitations. The payment of a dividend by an assignee under insolvent laws will not take the residue of the debt out of the statute of limitations as against the debtor.” In the second of these cases Chief Justice Shaw said: "To have this effect (of a new promise) it is manifest that the payment must be made by the debtor, or by his order, or by an agent fully authorized for the purpose. It is an act of his mind, from which the implied promise to pay the residue of the debt arises. We are of opinion that a payment by an assignee in insolvency is not a payment by the insolvent or his order, within the meaning of this rule. The assignee is bound by law to pay the dividend which has been declared, he is the debtor to that amount. The original debtor cannot delay or prevent such payment if he would. It is not a personal or voluntary act of the insolvent.”
This reasoning is applicable to the case at bar, the only ■difference being that here the assignee takes his authority from the deed of assignment.
It is held in Great Britain that a payment of dividends by an official assignee does not take claims out of the statute. Davies vs. Edwards, 6 Eng. L. & Eq., 620. Everett vs. Robertson, 1 Ellis & Ellis, 15.
We have found one case where it is held that the payment of a dividend by a trustee, under a deed to trustees in trust for the benefit of creditors, was treated as the act of the
In Pickett vs. King, vide supra, the Court say, “ The only promise made by the defendant was made in and by his assignment, and no person is therein authorized to make any new promise for him. It would be highly unjust to allow an assignee, under such construction, to continue and revive a debt of his assignor indefinitely and against his will and without his knowledge.” This view is also held in Parson vs. Clark, 59 Mich., 419, and in Marienthal vs. Mosler, 16 Ohio St. 566. We heartily adopt it. The facts and circumstances of the payment in question not being disputed, and they not showing a new promise by Tai Lung, a direction to the jury might well have been asked for and given that the part payment by Bolte to Hackfeld & Co. did not take the note out of the statute.
The Court in the case at bar charged the jury that if they believe that while the note was so held by Hackfeld & Co., they received payment of a certain sum upon it under the assignment which, as between the parties, that is to say, Tai Lung and Hackfeld & Co., was in full payment of it, then
Was it proper to leave to the jury the question whether the remainder of the debt was released by Hackfeld & Co.! We find it laid down in well accepted authority that, in general, the acceptance of a less sum of money than is actually due is not a satisfaction of the debt and will not extinguish it, though it was agreed by the creditor to -operate as such, as there Is no consideration for -the relinquishment This rule is considered so harsh and so violative of good faith that courts are disposed to take out of the rule al-1 those cases w'here there was any new consideration or where there was any collateral benefit received by the creditor. “ Courts have departed from it on slight distinctions.” Kellogg vs. Richards, 14 Wend., 116; Brooks vs. White, 2 Met., 285.
“ The rule and the reason were purely technical, and often fostered in bad faith.”
“ The history of judicial decisions upon the subject has shown a constant effort to escape from its absurdity and •injustice.” Harper vs. Graham, 28 Ohio, 106.
The jury had before them the fact of the taking of all the defendant’s goods from his store to be sold for the benefit -of his creditors. This .insured the creditors that the -debtor’s
But in this case, as we find by a reference to it in Jaffray vs. Steedman (So. Car.), 14 S. E., 632, the assignment provided that every accepting creditor shall receive the sum apportioned to him in fall satisfaction.”
In the case before us we do- not find any evidence of a release by BE. Hackfeld & Co. The deed of assignment does not contain any agreement that the receipt of his proportion by the creditor shall be in satisfaction of the debt or operate as a discharge of the residue. Nor is there any evidence that H. Hackfeld & Co. made any such promise. “An acceptance alone of the terms of an assignment for benefit of creditors is not equivalent to a release.” Jaffray vs. Steedman, supra. It is held in Sanborn & Warner vs. Norton & Dentz, 59 Tex., 308, that a general assignment with no provision for a release by those accepting its benefits does not bar the accepting creditor from collecting the balance due.
Acceptance of a dividend by a creditor who does not sign the deed of assignment which contained an agreement for delay does not preclude him from the right to beging an
It is true that the jury may have found against the defendants upon all the points; a special verdict would have made this clear; but as the instruction respecting the release may have misled the jury and diverted their attention from the other points, we are obliged to sustain the exception on this point, being the refusal to grant the fourth instruction asked by plaintiff, and grant a new trial.
The plaintiff also excepted to the verdict as contrary to the weight of evidence. It appears that plaintiff showed a copy of a letter addressed to defendant dated February 6th, 1889, requesting payment of the note, and stated that he received a reply in course of mails in which defendant said he had not then the money to pay, but would settle it by and by. This letter was not produced. Defendant denied receiving the letter and answering it. .We find no presumption from the fact that a letter was sent that it was answered or answered in any particular way.
As to other verbal promises said by plaintiff and others to have been given by defendant — these were denied by defendant, and this was left to the jury. It was for them to