10 Barb. 566 | N.Y. Sup. Ct. | 1850
The plaintiff in this action relies upon payments by one of several makers of a promissory note, made before the statute of limitations had barred an action upon it, to take the case out of the statute, as to all the makers, and to "continue the joint liability of all for six years from the time of making the last of such payments.
Before the decision of Van Keuren v. Parmalee, (2 Coms. 523,) it would have been considered very well settled, upon authority, that such payments did operate to prevent the statute of limitations from attaching to the demand; that by the joint contract there was a unity of interest by which a quasi agency was created between the contractors, so that the admission or promise of one would have bound all. (Whitcomb v. Whiting, Doug. 652. Patterson v. Choate, 7 Wend. 441. Hammon v. Huntly, 4 Cowen, 493. Johnson v. Beardslee, 15 John. 3. 6 John Ch. 291. Sigourney v. Dowry, 14 Pick. 387. Perham v. Raynol, 2 Bing. 306. Burleiglh v. Stott, 8 B. & C. 36.
While the decision of VanKeuren v. Parmalee does not decide the precise point presented by the case before us, it involved principles which were necessarily decided and which have an important bearing, if not a controlling influence, upon the decision of this cause. The judge who pronounced the opinion of the court in that case refers to the distinctions supposed to exist between that case and this, but does not profess to lay much stress upon them. He did not however undertake to decide whether there were or were not distinctions between the two cases which would influence the decision, and bring them within different rules. His argument was addressed to the settlement of general principles and the application of those principles to the case then under consideration, and he designedly left the question open as to what other cases these principles should govern, and what facts and circumstances would operate to place a case, in other respects similar to that decided, without the rule then established. But the court in that case, as the court of last resort in the state, reversed a series of decisions of the courts of this and other states and of England, and established as the law of this state principles inconsistent with many of the cases which have been followed by our courts as law, and have in some respects made the law more self-consistent. They have adopted, to a great extent, the views of Mr. Justice Story, as expressed in Bell v. Morrison, (1 Peters, 351,) which the supreme court of this state, acting upon the principle of stare decisis had not considered it proper to do, (Dean v. Hewit, 5 Wend. 257.) The cases cited above, in which it has been held that the promise of one joint debtor
It is substantially a new contract upon which the action is brought when it is sought to be sustained by evidence of a new promise, when, but for such new promise, it would have been barred by the statute of limitations. (Green v. Crane, 2 Ld. Raym. 1101. Bell v. Munson, supra. Thompson v. Peters, 12 Wheat. 565. Dean v. Hewit, supra. Tompkins v. Brown, 1 Den. 247.) The only question, then, is whether the joint contract creates an agency in one of several joint debtors, to continue a debt, or revive a debt already barred, against all, and prevent the statute of limitations from attaching by a new promise, express or implied; or, in other words, whether such joint debtor is authorized, in virtue of his relation to the parties, to make such new contract which shall bind them all. The cases in England and in this state prior to Van Keuren v. Parmalee, have followed the case of Whitcomb v. Whiting, and héld that such agency did exist. But the decisions were made without adverting to the fact that the decision of Whitcomb v. Whiting, while it was perhaps not inconsistent with the principles upon which the courts proceeded at the time it was pronounced, as to the construction to be put upon, and the effect to be given to, the statute of limitations, was inconsistent with the more modern decisions under the statute, and with the case of Green v. Crane and other authorities to the same effect. The decision <- of the court in Van Keuren v. Parmalee, without reference to the reasoning of the judge by whom the opinion was delivered, necessarily decides or recognizes as law, 1st, That the action is substantially, although not in form, upon the new promise, and