Goodrich v. Case, 1 Ohio Law Rep. 281

Goodrich v. Case

1 Ohio Law Rep. 281 | Ohio | 1903

This cause was orally argued before a division of the court, and was afterward ■ submitted to and fully considered by the whole court.

The original note and the mortgage securing the same were demands founded on a contract, and therefore Section 4992, Revised Statutes, is applicable. That section is as-follows: “When payment has been -made ujion any demand founded on a contract, or a written acknowledgment thereof, or promise to pay the same, has been made and signed by the party to- be charged, an action may be brought thereon within the time herein limited, after such payment, acknowledgment or promise.”

Grove Case was the payee in both the original and substituted notes, and the name of Burton Case is not found in either note. On January 31, 1881, when the substituted, note was handed to *287Burton Case, there was no written acknowledgment thereof made to him, and there was no promise made to him in writing to pay the note. Grove Case having died before that time, there could be no acknowledgment or promise to him, because an acknowledgment or promise must be to the living, and not the dead. The talk was with Burton Case, but that talk was not' reduced to writing, and was not signed by the party to be charged. The substituted note was signed by the maker, the party to be charged, and took the place of the old note, and had its force and legal effect and nothing more; and if from the signing of the substituted note a promise or acknowledgment is to be forced 'or forged, contrary to the intent and purpose of Mr. Goodrich and the executor, that result is avoided and averted by the fact that such acknowledgment and promise was not made to the living executor, but to his dead ancestor. And this defect can not be helped out by parol, because the promise or acknowledgment is required by the statute to be in writing, and the writing must show on its face to whom the promise or acknowledgment was made. A promise or acknowledgment to the dead is void, and to show by parol that while the written promise or acknowledgment was to the dead, it was in fact delivered to the living, would be to 'avoid the statute by substituting a parol promise or .acknowledgment' for the written one required by the statute.

In its conclusions of fact, the court finds the following: “That in that transaction it was the intention of the parties merely to renew the evidence of the old note — to put in fresher and at that time more lasting evidence the old or original note, 'and that the new paper should stand for the old note, and there was no other intention in the mind of the parties at the time.”

This conclusion of fact is fully supported by the evidence as to the whole transaction, including the substituted note. The purpose and intention of the parties to a transaction should govern and determine its legal effect in the absence of a statute or positive rule of law requiring the contrary. Laying aside the question of the death of Grove Case, there is no direct acknowledgment or promise to p'ay this old note by the giving of the substituted one. It may be argued that the giving of the substituted note was a written acknowledgment at that time of the demand evidenced by the old note, and was also a promise in writing to pay the same. But this argument is not sound. Nothing is said in the substituted note about an acknowledgment of the old note, and there is no promise to pay the old note. The substituted note deals only *288with the original debt as of the date of the original note, and was given in its place and stead, and was not given as a new promise or a new acknowledgment, but only to preserve in lasting form on good paper the old promise and old note. In such cases the intent and purpose' of the parties should control, and their intentions .should not be thwarted by a strained construction.

To make a copy of a note is not an acknowledgment of such note, nor a promise to pay the same; and this is so whether the copy is made by the maker or a stranger. Suppose the holder of a note should desire a copy thereof for some purpose of his own, and the maker, at his request, should make and deliver to him such copy, it could not be reasonably claimed that an acknowledgment of the note, or 'a promise to pay the same, lurked in such copy. Suppose the maker to be a notary public taking deposition in which it would become necessary to insert a copy of his own note; the copy so made could not be reasonably -construed to be an acknowledgment by him of the note, or a promise to pay the same. Or suppose the maker should be county recorder, and the note copied into the mortgage, as is sometimes done, and the mortgage brought in at a late date and recorded, it could not be reasonably claimed that the copy of the note in the record would-amount to an acknowledgment of the note, or a promise t'o pay the same, because in all those cases the purpose and intent of the parties would not be to make an acknowledgment or promise; and in construing written instruments the controlling rule is to give effect to the purpose and intention of the parties. The object -of making written instruments is to show the purpose and intention of the parties.

The acknowledgment or promise which takes a note out of the statute of limitations is an acknowledgment or promise of the note itself, or a mere copy thereof. The note is the object, and the acknowledgment or promise must be as to that object. The note must be acknowledged as existing and the promise must be to pay such existing note.

The making of a note or copy thereof can not at' the same time serve the double purpose of a making, and also- of an acknowledgment or promise to pay. The proposition is absurd.

The court of common pleas erred in rendering judgment in favor of the plaintiff below upon the facts found, and the circuit court erred in affirming the judgment. Both judgments will be reversed, 'and judgment entered in favor of plaintiffs in error.

Judgments reversed, and judgment for plaintiffs in error.