Foute v. Bacon

24 Miss. 156 | Miss. Ct. App. | 1852

Mr. Justice Fisher

delivered the opinion of the court.

The appellees filed their bill in the vice-chancery court at Monticello, against the appellants, to recover the amount of principal and interest of two promissory notes, the first dated the 18th of May, 1840; for $3,000; the other dated the 23d of May, 1840, for $2,632.18, made by Thomas Y. Grinstead, now deceased, John H. Hilliard, and Arthur Fox, both payable twelve months after date to the Planters Bank of the State of Mississippi, and by the bank transferred by delivery to the complainants below.

The bill appears to have been filed and process issued thereon, on the 30th of June, 1848. To avoid the statute of limitations, it was amended at the July term, 1848, of the court, by averring that the notes were on the 1st of April, 1847, presented to Grinstead, the principal therein, who acknowledged that they were “ wholly ” due and unpaid, and promised payment thereof.

The defendants, at the proper time, in the court below, appeared and filed a demurrer, which was overruled'; from which order an appeal has been prosecuted to this court.

It will be seen that Grinstead’s acknowledgment was made before the bar had attached, and is as broad as the language of the statute. No question can be made as to its sufficiency to take the case out of the operation of the act of limitations as to him. The point to be decided is, how far this acknowledgment affects the other parties, Hilliard and Fox, who are joint contractors with Grinstead.

It is clear that the acknowledgment, under the English authorities previous to the statute of 9 Geo. 4, c. 14, would be sufficient to relieve against the statute of limitations as to all the parties to the notes. Previous to this statute, the acknowledgment or promise of one joint maker, or joint and several maker, was equally binding upon all the parties to the instrument. As the law now stands, however, the party who makes the acknowledgment or promise only binds himself, as it must be .evidenced by writing, and signed by the party chargeable thereby.

We will now proceed to examine our own statute bearing on this question. It will be found p. 832, Hutch. Code, § 16, and is fin these words: “ No promise or acknowledgment, either express or implied, shall operate to revive at law any action or cause of action from the bar and limitations contained in this 'act, unless such promise or acknowledgment be in writing, and signed by the party to be charged thereby. Provided, however, that the promise or acknowledgment to save the bar, may be made without writing, if it be proved that the very claim sued on, was presented, and acknowledged to be due and unpaid.” We have already stated what the rule was as to a promise or acknowledgment by a joint contractor, previous to the English statute, and this rule must still govern as to the case now under consideration, unless there is something in the statute quoted, changing it. It will be seen, that the claim must be presented, before it can be acknowledged to be due and unpaid.

This provision of the statute, or rather of the proviso', was adopted for the purpose of dispensing with written evidence in a particular class of cases; and hence the caution manifested by the legislature, in the kind of proof to be introduced to identify the claim sought to be upheld by the new promise or acknowledgment. A presentment being indispensable, it follows that the party to whom it was made, could only make the promise required by the statute. Where there was no presentment, there could be no promise or acknowledgment to bind the party. The first part of this section says, that no promise or acknowledgment, either express or implied, shall operate to revive at law, &c. Now it cannot be pretended, that Hilliard and Fox ever made any express promise or acknowledgment respecting these notes. If, then, they are to be held liable, it must be upon an implied promise, resulting from the express promise of their co-maker, Grinstead.

The law recognizes two kinds of promises, express and implied promises; the first is the express stipulation of the party making it, to do or not to do a particular thing; the second the law presumes, from some benefit received by the party against whom it is raised; or, to illustrate it by the old rule, to take a case out of the statute of limitations, payment, or an acknowledgment of the justice of a debt, implied a promise to pay it. But the more recent statutes on this subject, have laid down the rule in different language, as to the promise necessary to continue a liability on an obligation apparently barred, by their operation, as well as the kind of proof to sustain such promise. Under the proviso of our statute, an express promise to pay, is not necessary to save the bar; but the acknowledgment that the debt is due and unpaid must be express, and made upon a presentment of the claim. The law will presume a promise under the act against the party making the acknowledgment; but this presumption can extend no farther. Suppose the notes had been presented to all the makers, and one acknowledged the debt, according to the letter of the proviso, and the other two denied that the notes were due or unpaid; could it be pretended for a moment, that the operation of the statute was not complete as to the two thus denying ? or could it be pretended that the law implied a promise against them on an acknowledgment which they declined making? Yet if Grinstead’s acknowledgment is to bind the other makers, it must have the effect of raising a presumption, or creating a promise against them, which they will not be allowed to controvert by showing that the notes were not due or unpaid.

The plain meaning of this proviso appears to be this: that when a claim shall be presented to a party, whether he be a joint contractor or not, and he acknowledge it to be due and unpaid, then the statute commences running anew from that period; but if, on such presentment, the acknowledgment shall be withheld, then nothing has been done to take the case out of the operation of the statute.

The first part of the section says, that the written promise or acknowledgment shall be signed by the party to be charged thereby. A joint contractor, who fails to sign the writing, of course is not charged thereby. The same-rule of construction must apply to the acknowledgment or promise in the proviso, which must be made, on the presentment of the claim, by the party who sees and inspects it. A party can only be charged without writing, where he has seen the claim and made the acknowledgment or promise. A presentment is the mode pointed out by the law to identify the claim, in regard to which the promise to pay was made ; if this presentment cannot be established, then no evidence can be received to charge the party, but a writing signed by him. This being the meaning of the statute, it is clear that the bar as to Hilliard and Fox is complete, and the demurrer as to them must be sustained.

Another point urged by the counsel of the appellants is, that the complainants’ remedy was complete at law upon Grin-stead’s promise. This promise was made before the bar had attached, and was merely a continuation of the original promise. The authorities appear to be unanimous on this point. The case of Bell v. Morrison, 1 Peters, 351, has no application to the present case. In that case, the statute of limitations had attached, so that the other partners were already discharged, and, therefore, no liability existed, except against the party entering into the new contract.

The decree as to Hilliard and Fox reversed, bill as to them dismissed, and cause remanded as to Grinstead’s executors. Appellees to pay costs as to Hilliard and Fox; Grinstead’s executors to pay as to balance.