Bush v. Stowell, 71 Pa. 208

Bush v. Stowell

71 Pa. 208 | Pa. | 1872

The opinion of the court was delivered, by

Sharswood, J.

Lord Coke announced the distinction between actions of debt and of covenant or assumpsit upon an agreement to pay a sum of money by instalments, which has been recognised and followed since: “If a man be bound in a bond or by contract to another to pay a hundred pounds at five several days, he shall not have an action of debt before the last day be passed.” “ But *212if a man be bound in a recognisance to pay a hundred pounds at five several days, presently after th,e first day of payment he shall have execution upon recognisance for that sum, and shall not tarry till the last be past, for that it is in the nature of several judgments.” “And so it is of a covenant or promise, after the first default an action of covenant or an action upon the case dpth lie, for they are several in their nature:” Co. Litt. 292 b. Lord Loughborough reviewed all the law on this subject in Rudder v. Price, 1 H. Bl. 547, in which it was held that an action of debt will not lie on a promissory note, payable by instalments, till the last day of payment be past. He shows that prior to the case of Cooke v. Whorwood, 2 Saund. 337, it was the uniform course where an action of assumpsit was brought before all the instalments were due, to allow a recovery in damages for those still to accrue and come due, upon the notion that after a judgment on the contract no further recovery could be had: Beckwith v. Nótt, Cro. Jac. 504; Peck v. Ambler, Dyer 113 and note; Milles v. Milles, Cro. Car. 241. But in Cooke v. Whorwood, which was assumpsit to perform an award to pay money in instalments, it was objected that all the days of payment were not past ;’but the Court of King’s Bench, Sir Matthew Hale being then Chief Justice, was clear that the action might be brought for such money only as was due at the time of bringing the action, and the plaintiff could recover damages accordingly; and when another sum of the money awarded should become due, the plaintiff might commence a new action for that also, and so toties quoties. The law must be now considered as settled in conformity to this doctrine: Tucker v. Randall, 2 Mass. 283; Greenleaf v. Kellogg, Id. 568; Cooley v. Rose, 3 Id. 221.

If then the plaintiff could have maintained a suit for the first instalment in this case immediately after it fell due, his cause of action then accrued, and the Statute of Limitations began to run. It is unnecessary to inquire what the law would have been if this had been an action of debt, and the plea actio non acerevit infra sex annos; for, as we have seen, an action of debt could not have been maintained on this promissory note until after all the instalments had fallen due. But being assumpsit, there would seem to be no question that, as to the first instalment, the action was barred: Burnham v. Brown, 23 Me. 400; 2 Pars, on Cont. 373.

Nor is it any longer open to question that a payment on account or an acknowledgment by one of two or more joint debtors will not take the ease out of the statute as to the others: Coleman v. Fobes, 10 Harris 156; Levy v. Cadet, 17 S. & R. 126; Searight v. Craighead, 1 Penna. Rep. 135; Houser v. Irvine, 3 W. & S. 345; Schoneman v. Fegley, 7 Barr 433.

What then is the effect of this rule when applied in a joint action against several joint debtors? Certainly not that it shall *213sever the judgment, which in a joint action ex contractu would be an anomaly. In such a proceeding if evidence is offered of an acknowledgment or payment by one only of the defendants, it is strictly inadmissible, unless indeed offered to be followed by a similar acknowledgment or payment by the others, which would be sufficient to take the case out of the statute as to all. It follows that in this case the jury should have been instructed to find for the plaintiff as against all the defendants only the amount of the second instalment and interest. Whether the plaintiff could maintain an action against those not affected by the bar of the statute in consequence of their acknowledgment or payment for the first instalment, need not now be discussed, nor on what principle contribution between the joint debtors is to be regulated. Sufficient for the day is the evil thereof. Upon a writ of error by the defendants, the verdict and general judgment entered on the verdict could not have been sustained. It is in effect several judgments in a joint action. We must assume that the defendants acquiesce, as they do not complain. But what injury has been done to the plaintiff in error ? He has in his joint action, by the verdict and judgment below, all the benefits which he could possibly have attained had he brought several actions against each defendant. It would evidently be an injury to him to reverse this judgment, and send the case back for another trial, which must result in a verdict and judgment against all for the less sum, leaving the plaintiff to pursue his separate remedies against those as to whom the bar of the statute is saved.

Judgment affirmed.

Thompson, C. J. — As applicable to the case in hand, I dissent.