Buckingham v. Walker, 48 Miss. 609

48 Miss. 609 | Miss. | 1873

Simkall, J.:

The “ agreed case,” settled by counsel, submits six questions, which cover all the substantial points raised in the record.

1. Is the testimony sufficient to sustain the verdict on the pleas of non estfactum? The promissory notes were signed by Cocke and Buckingham. There was evidence before the jury that Buckingham, the testator, and Stephen Cocke were partners in planting; that their business relations were most intimatp, as were their personal relations, being those of uncle and nephew; they were also joint owners of property. Most of the testimony was to the point, whether the note was actually signed by Cocke or Buckingham. The note itself having, before the trial, been accidentally destroyed by fire, it was not practicable for the witnesses who spoke of the handwriting to have been as clear and distinct as if the note had been before them; nor was it possible to submit the signature to as full and satisfactory tests as if it had been under the inspection of the witnesses. The jury is independent of the judge in responding to an issue of fact. The theory of' our system assumes their entire capacity to make a true finding of facts, and therefore it belongs to their province to judge of the credibility and weight of evidence. The court cannot revise and correct errors in the verdict. It may, however, set it aside when against the clear weight and preponderance of the testimony. Quite half, if not a majority, of the witnesses express the opinion that the signature was made by Buckingham. There was also testimony tending to show that it was customary and usual for either, at pleasure, to use the firm signature, and that both recognized the right so to do. We could not, in the face of long-established ptrinciples, assume to say that this verdict was wrong on this issue.

2. Was the demurrer properly sustained to the fourth and fifth pleas of Mrs. Buckingham ? The former sets up that suit was not brought within six years and nine months after the maturity of the note. The latter, that suit was not brought within four years and nine months after the grant of letters testamentary. The note was due the 10th of August, 1859. Suit was brought 26th April, A. D. 1866. It is manifest, therefore, that deducting the time of the suspension of the statute of limitations, the six years and nine months had not expired. We presume that the question intended to be raised by the demurrer is, that the defendant ought to have averred in her plea, that the six years and nine months had elapsed, deducting therefrom the time of the suspension of the statute, and for the lack of such averment the plea is bad. We have no doubt that it would have been better and more logical pleading to have made the allegation. The court is bound to take judicial notice of the suspension act. The effect of that statute is to extend and prolong the time of bringing suit. This note maturing in 1859, the operation of the statute was to enlarge the time for suit about five years, so that the bar would not attach until about eleven years after its maturity. It would not be barred then in six years and nine months. • As a question of pleading, such was the decision in Griffing v. Mills, 40 Miss. 614. There was a demurrer to the plea of the statute, of three years in bar of the writ of error. The demurrer was sustained because the act of 31st December, 1862, suspending the statutes of limitations, enlarged the time. In computing the three years, time would be counted before the suspension and after its termination only, no account being taken of the intervening period. We accept this authority as decisive of the question, but repeat the observation that it is better pleading to aver, in such cases, that the six or three years (or other time) has expired, deducting the time of the suspension-of the statutes. The demurrer was properly sustained to this plea.

4. The fifth plea avers the grant of letters testamentary on the 6th of July, 1857, and that suit was not commenced within four years and nine months thereafter. The 11th art. of the Code of 1857, page 400 (under which this plea was framed), had its original in the Act of 1844. As respects the matter of the plea, both statutes are of the same import. In Binghan et al. v. Robertson, 25 Miss. 506, 507, it was held that the “ cause of action” must be in existence, or have accrued against the testator or intestate, at or before his death. So also, McLean v. Ragsdale, 31 Miss. 704; Pope v. Bowman, 27 ib. 197; French v. Davis, 38 ib. 224. These cases establish the rule, that the 12th section of the Act of 1844 does not apply unless the “ cause of action” had accrued against the decedent (whose legal representative is sued), in his lifetime. The 11th art. of sec. 2, chap. 57, of the Code of 1857, is substantially the same as the 12th section of the Act of 1844, and must receive the same construction.

The cause of action sued on did not exist against Buckingham, the testator, in his lifetime, nor did it accrue against his executrix until two years after the grant of the letters; it follows, then, that her plea was bad, and the demurrer was properly sustained.

5. The tendency of the testimony of Bradford, which was objected to, was to prove a payment of the debt; it went to exonerate himself as well as the sureties. We think such .testimony from a surviving party to a contract, is not admissible in a suit by the legal representative of the other party, Faler v. Jordan, 44 Miss. 289, 290, 291.

6. Was the agreement of the 24th of June, 1861, between Bradford and Wyatt Moye, a payment of the note in suit; or a release or discharge of Cocke & Buckingham ? It must be confessed, that this paper is very obscure and difficult to understand. It begins by a recital that Moye holds the note as administrator of Wm. Dancey’s estate ; then follows a statement that, in order to put Moye in funds to the amount of the above note and interest, Bradford has given his individual note for $7,182.64, payable to Moye, guardian for the heirs of Westbrook. It might be inferred from these recitals, that the object of the parties was to change the indebtedness to Dancey’s estate to the heirs of Westbrook, of whom Moye was guardian. Being the administrator of the one and guardian of the other, he attempted, as it might seem, to so arrange as to treat Bradford’s note as a debt to his wards, and thereby, perhaps, technically cancel his indebtedness to them to that extent, and use their funds to settle the estate of Dancey with creditors and distributees. If that be the true version of the transaction, then Bradford’s note of the 21st of June, 1861, -would he the property of the Westbrook heirs. The last clauses of the instrument stipulate, that when Bradford’s separate note is paid, then the note in suit is to be considered liquidated and paid, hut none of the parties are to be released, nor the first note canceled, until the last- (Bradford’s) is fully paid. It is very plain that Bradford, Cocke and Buckingham were to continue bound. If the intent of the parties was to transfer the indebtedness to Dancey’s estate to the heirs of Westbrook, then it is manifest that the note in suit should remain in force as a representative and security for that indebtedness. In that view of it, this agreement does not show a payment of the note, hut rather that the debt was equitably assigned to another creditor.

It is certain that in June, 1861, no money passed between Bradford and Moye; Moye, being administrator of Dancey’s estate, and guardian of Moses West-brook’s heirs, from motives of his own, it would seem, took from Bradford the note payable to himself as guardian, and also held the other note, unpaid and uncanceled.

Moye retained both notes. It is well settled in this court, in harmony with the great weight of authority, that the acceptance of a promissory note is not a payment of a pre-existing debt, unless agreed to be taken as payment, expressly provided the note has not been transferred and is not outstanding in the hands of an assignee. Guion and wife v. Doherty, 43 Miss. 538.

But it was in evidence to the jury that Moye had not the authority of the probate court to invest the money of his wards at interest, as required by art. 147, p. 461, Code of 1867 ; nor in his settlement, or in the settlement of his leg’al representative, was this indebtedness — either Bradford’s note, or the note of Bradford, Cocke and Buckingham — presented in his account as assets of his wards; nor were they so accounted for in the settlement with Dancey’s estate. The notes; then, were his individual property, the funds of his wards not being invested in them, and they being in no wise used for or connected with the estate of Dancey. It may have been the intention of Moye to consider this indebtedness to himself as an investment of the funds of his wards; but he could not so rightfully employ the funds of his wards without the sanction of the probate court, nor could he devolve upon them the i;isk of the solvency of these debtors.

5. Not having claimed, in his settlements as administrator and guardian, a fiduciary character for the notes, he perhaps abandoned his original purpose to so consider them.

The remaining question is, was time given to Bradford, the principal, without the consent of the sureties, Cocke and Buckingham ? Although the proof is clear that they were sureties, it is not so clear that the fact was known to Moye; and, without such notice, none of the parties would be discharged by extending the day of payment. The evidence is that Moye acted as though Bradford were the principal. The jury may have concluded that it was satisfactory proof, in the absence of anything offered to the contrary by the defendant.

The most effectual test, as to whether the sureties are discharged, is to ascertain whether the new credit prevents the holder of the note from bringing an action against the principal. Oxford Bank v. Lewis, 8 Pick. 458; Blackstone Bank v. Hill, 10 ib. 132. In the case under consideration, the agreement expressly states that the note is not to be considered canceled nor the parties released; that is to say, that the note is to continue as though Bradford had not made his note of June, 1861. There is nothing in the contract which takes from the holder the right to call for or enforce the original debt; nor can this be predicated of anything in the contract, unless from the recital, that Bradford had made his note for seven thousand and odd dollars, due in 1863. In Wade v. Stanton, Buckner & Co., 5 How. 634, the very question was ruled. There, a bill of exchange, maturing some time after the note, was taken from the principal; but it was held that this, of itself, did not discharge the surety. 8 Pick. 458, supra; Freeman’s Bank v. Rawlins, 13 Me. 205.

This disposes of all the questions made in the agreed case. It follows, therefore, that the judgment should be affirmed.