Beeler v. Clarke

44 A. 1038 | Md. | 1899

The cause of action in this case is a promissory note for $300, made by the appellant to the appellee April 26th, 1877, and payable 60 days after date, suit having been instituted Sept. 3rd, 1898. The pleas were the general issue and the statute of limitations. The case was tried before the Court without the intervention of a jury, and judgment was rendered for plaintiff for the amount of the note with interest. At the trial the appellee offered the note in evidence, which he testified was in the handwriting of the appellant, and was given to secure a loan of $300, then made, no part of which had ever been paid, though he had demanded payment on three different occasions at times and places which he named, the last time being the day before the presidential election in 1896, on Pier 9 of the B. O.R. Co., in Baltimore; that on the first two occasions the appellant simply said he was not able to pay it; that on the last occasion the appellee drew out the note — showed it to the appellant, and told him he wanted him to pay the face value of the note, and that appellant replied "I cannot do that now, as I have two members of my family now to support." Daniel Meyler testified that he was present on the last occasion mentioned; that he had seen that note before in appellee's possession; that he saw it presented at that occasion; heard appellee ask appellant to pay him the money he owed him, and that he replied he was not in a position to pay him then. The appellant testified that he had no recollection of giving the note, but that both the body and signature appeared to be in his handwriting; that to the best of his knowledge he never borrowed any money from the appellee, and never owed him any, and that he had never seen the note until it was presented to him by Mullin, as attorney for the appellee, and that the appellee never made any demand upon him for money due; but on two occasions, about four and two years before that time, had asked him for a loan of $500, which he did not make. He was not asked whether he said he could not pay the note then because he had two members of his family to support, and his testimony embraced no denial of the use of that language. The appellee denied that he ever asked appellant for a loan, and Meyler testified that no loan was asked for on the occasion when he was present.

Upon this testimony the appellee offered the following prayer: "If from the evidence in the cause the Court finds that the defendant for valuable consideration executed and passed to the plaintiff the promissory note sued on in this cause, and has not paid the same, and although from the evidence the Court should find that said cause of action accrued more than three years before the bringing of this suit, yet if from the evidence the Court further find that within three years before the suit, the plaintiff demanded of the defendant payment of the promissory note sued on, and exhibited at the same time to the defendant the said promissory note, and the defendant, without denying or disputing the authenticity of said note, or his legal obligation to pay the same, said only "I cannot do it now, I have two members of my family to support," then there is sufficient evidence in the cause to relieve the said cause of action from the bar of the statute of limitation pleaded by the defendant."

And the appellant offered two prayers, the substance of the first being that there was no evidence legally sufficient to show an acknowledgment within three years before the suit, either of the note sued on or of any existing indebtedness whatever at the time of the acknowledgment claimed; and the second, that there was no evidence legally sufficient to remove the bar of the statute of limitations. The Court granted the plaintiff's prayer, and refused the two prayers of the defendant — to which ruling the defendant excepted, and has brought this appeal.

Appellant's counsel has addressed to the Court a most ingenious and interesting argument, one which might have much weight, if we had to determine here for the first time, what is a sufficient acknowledgment to take a case out of the Act of limitations, but as was said by CHIEF JUSTICE LEGRAND, in Quynn v. Carroll,10 Md. 208: "The statute of limitations has ever been a fruitful source of doubt and discussion, and the decisions in regard to it, both in this country and in England, various and contradictory. This being so, whenever it is found that the question presented in the particular case, for the time under consideration, has been settled by the adjudications of the appellate Court of this State, such adjudications ought to be followed, whatever may have been the decisions elsewhere:" And looking to the decisions in this State, we cannot doubt that the ruling of the learned judge of the Superior Court in this case was entirely correct. It may perhaps be conceded that the principles announced in the leading case of Oliver v. Gray, 1 H. G. 204, are more liberal to indulgent creditors than might be deemed wise at this day when parties in interest are permitted to testify, and those principles are so often made available to defeat the salutary policy of the statute as a statute of repose; but that decision has been too frequently and too emphatically affirmed by our predecessors, and by ourselves to permit us now to depart from it, as we must do, if we should reverse this decision. In Shipley Wampler v. Shilling, 66 Md. 563, it is said: "The principle is now well settled, in this State at least, that where a debt is admitted to be due, the law raises by implication, a promise to pay it; and it is, therefore, immaterial whether the promise be made in express terms, or be deduced from an acknowledgment as a legal implication; as in either case, the effect is the removal of the bar of the statute, and the restoration of the remedy on the original demand." InKeplinger v. Griffith, 2 G. J. 301, it was held that the language used by the defendant "was a clearly implied admission that the debt remained due and unpaid, and the excuse alleged for not paying it, furnished no real objection to the payment of it, if true." It is, therefore, clear in this State, that not only the promise to pay, but the acknowledgement of a present subsisting debt, may be implied from the language used. Here the appellant is confronted with an obligation which he admits not only to have been signed but to have been written by himself, and when the obligation is presented, accompanied by demand for payment, he says "I cannot pay it now, as I have two members of my family now to support." Upon the authority ofKeplinger's case (supra), this constitutes an implied admission of a present subsisting debt, and being unaccompanied by any qualification which, if true, would exempt him from any moral obligation to pay, it raises an implied promise to pay, and removes the bar of the statute. This case, however, is stronger than Keplinger's case, because the use of the word now twice occurring suggests the purpose of future payment when the disabilities now existing may be removed. At the last term of this Court in the case of Babylon v. Duttera, 89 Md. 444, we applied this rule without relaxation, holding that a declaration of a defendant that if he had known certain notes would have been assigned he would have paid them off was sufficient to remove the bar of the statute.

Judgment affirmed with costs above and below.

(Decided December 6th, 1899).