70 N.J.L. 15 | N.J. | 1903
The opinion of the court was delivered by
The plaintiff brought this action to recover the amount due on an interest-bearing promissory note, made by the defendant, dated May 22d, 1896, for the sum of $2,500, and payable to the order of the plaintiff, on demand. The ’action was begun in June, 1902, more than’ six years after the date of the note. The defendant pleaded non assumpsit infra sex annos. At the trial the plaintiff attempted to overcome the defence of the statute of limitations by showing a promise to pay the amount due on the note, made by the defendant less than six years before the suit was begun. 'Tb prove this promise two letters were produced and offered in evidence, written by the defendant’s son, one dated December 4th, 1898, and the other May 29th, 1901, in each of which there was an acknowledgment that the note had not been paid and a promise that the defendant would pay it as soon as she was financially able to do so. Each of these letters also contained a statement that it whs written at the request of the defendant. To overcome this evidence the defendant’s son was examined, and testified that his mother had never authorized him to make these acknowledgments and promises for her. The court thereupon charged the jury that if they believed the acknowledgment of the debt and the promise
The jury so found.
The tenth section of the statute of limitations (Gen. Stat., p. 1976) provides that “in actions of debt or on the case, grounded on any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of this act or to deprive any person of the benefit thereof, unless such acknowledgment or promise shall be made or continued by, or in some writing to be signed by, the party chargeable thereby.” It is an exact transcript of the first section of the English statute of 9 Geo. IV., c. 14, passed in the year 1828, and commonly known as Lord Tenterden’s act. By the construction put by the English courts upon the words “signed by the party chargeable thereby,” an acknowledgment or promise signed by a duly-authorized agent of the debtor was held not sufficient to take the case out of the statute. Hyde v. Johnson, 2 Bing. N. C. 776; Glarh v. Alexander, 8 Scott N. R. 147. In the case first cited, Chief Justice Tindal, after pointing out that the legislature had in many prior statutes, particularly in various sections of the statute of frauds, given equal efficacy to written instruments when signed by the parties, and when signed by their agents, says: “It appears, therefore, that the legislature well knew how to express the distinction between a signature by the party and a signature by his agent. When, therefore, we find in the statute now under consideration that it expressly mentions the signature by the party only, we think it'a safer construction to- adhere to the precise words of the statute, and that we should be legislating, not interpreting, if we extended its operation to writings signed, riot by the party chargeable thereby, but by his agent.”'
The reasoning of' the learned Chief Justice seems convincing. -But'even if the meaning of the phrase■ itself was
The evidence offered by the plaintiff for the purpose of taking the case out of the -operation of the statute not being efficacious to accomplish that result, a verdict should have been directed for the defendant.
We have not overlooked the contention of the plaintiff that as the note sued upon bore interest, it did not become due until actual demand made, but we consider it without merit. It was decided by this court, as early as 1831, in Larason v. Lambert, 7 Halst. 247, that in the case of a promissory note payable on demand, the time when the
But even if this contention on the part of the plaintiff was sound, it would not now avail him. The case was tried upon the theory that the note was outlawed, unless it was taken out of the operation of the statute by the new promise contained in the letters, and the plaintiff’s verdict cannot be sustained upon a theory of the law antagonistic to that upon which the case was tried. To do so, upon a rule to show cause; would be to deprive the defendant of his right to have the judgment of the court of last resort upon the soundness of that theory as applied to the facts of the case. Hays v. Pennsylvania Railroad Co., 13 Vroom 446; Halsey v. Lehigh Valley Railroad Co., 16 Id. 26; Sensfelder v. Stokes, 40 Id. 86.
The rule to show cause should be made absolute.