Coit v. Tracy

8 Conn. 268 | Conn. | 1830

Daggett, J.

The motion states, as grounds for a new trial, the rejection of S. Thomas’s testimony; the opinion of the judge delivered to the jury, that so far as the facts in controversy in this suit were found by the superior court on the bill in chancery, the finding was conclusive between the parties; and that the acknowledgment of B. Coit, in 1827, was good and sufficient evidence to take the case out of the statute of limitations.

1. Was the testimony of Simeon Thomas properly rejected 1 It is here to be observed, that the defendant Tracy, never denied, that the debt was contracted as set forth in the plaintiff’s declaration. He insisted, that it was paid; and if not paid, that the plaintiff was barred of a recovery, by the statute of limitations. In proof of payment, he offered the witness to testify, that B. Coit, the other defendant, had agreed with him to pay it, and that he had in fact paid it. It appears, that the defendant B. Coit, was a brother of the plaintiff and his deceased partner; that there were, and fora long time had been, unsettled accounts between them ; and that the present demand against B. Coit and E. Tracy had been of upwards of twenty-five years standing. This witness was offered to prove, that B. Coit had agreed with E. Tracy to assume the payment of this debt.

In the view I take of this case, this proof was correctly rejected ; because I think, that the point must have been decided on the bill in chancery, and that it so appears on the decree. Why then should the defendant be permitted to draw in question that fact again? 1 Stark. Ev. 191. 198. Swift’s Ev. 10. Denison v. Hyde, 6 Conn. Rep. 508. 516. Hopkins v. Lee, 6 Wheat. 109. Had the court below been of the opinion that the facts being true as stated in the defendant’s answer, the plaintiff was not entitled to relief, for that he had adequate remedy at law, it should have so appeared. It now appears by the decree, that this debt had not been paid.

2. It is again insisted, by the defendant, that the opinion of the court that the facts found by the decree were conclusive, was incorrect. And so I think. The true doctrine is, that facts found sufficient to uphold the decree, conclude the parties, and nothing else. Hotchkiss v. Nichols, 3 Day, 138.

3. The great question, however, in this case, is, whether the charge to the jury, that the acknowledgment of B. Coit, was good and sufficient evidence to take the case out of the statute, under the circumstances which appear on this motion, was correct. The doctrine that the acknowledgment of one joint debtor will take a case out of the statute of limitations, has been sanctioned in Great-Britain, and by this Court. Whitcomb v. Whiting, Doug. 652. Bound & al. v. Lathrop, 4 Conn. Rep. 336. So the admission of one copartner, during the continuance of the copartnership, or by one joint contractor, in relation to the contract, is competent proof against all. This doctrine rests on this plain principle, that the confession of a party in interest, when made against his interest, is always evidence ; and as-his interest in the cases supposed, is identical with that of the other copartner, joint obligor or joint contractor, so his admissions have a controuling operation. But suppose that a partnership had been dissolved twenty years; shall one of the partners, who perhaps is insolvent, by his acknowledgment, set up a stale demand against his solvent partner? Or, as was attempted to be shewn in this case, shall one of two debtors in a single agency, ended more than twenty years since, set up a claim where his interest is entirely in favour of its being enforced? Shall he cause a suit to be brought and agree to pay all costs, and then, by his admissions, support that suit?

But it is said, the declarations of the party to the record, are always admissible. Bauerman & al. v. Radenius, 7 Term Rep. 663. Bulkley & al. v. London & al. 3 Conn. Rep. 76. True; but here the acknowledgment was holden, by the court, good and sufficient. See Peck v. Botsford & al. 7 Conn. Rep. 172. It is, indeed, a stubborn rule of law, that the declarations of the party are admissible evidence; but are they always sufficient? In the case last cited, it was otherwise decided, in June 1828.

Even in the case of partners, an acknowledgment by one partner, after the partnership is dissolved, is not sufficient to revive a debt barred by the statute of limitations. Clementson v. Williams, 8 Cranch 72.

It appears, in this case, that there was a joint agency, conducted by the defendants, and ended more than twenty years before the confessions of B. Coit. It also appears, that he has procured the commencement of the present suit, and, in some way, (no matter how,) promises to himself an advantage, by a recovery against the defendant, E. Tracy. To declare that acknowledgments made under such circumstances shall have the effect of removing the bar, would be a perversion of the principle on which such testimony is admitted.

There must, therefore, be a new trial.

The other Judges were of the same opinion.

New trial to be granted.