64 Tex. 89 | Tex. | 1885
Eliza M. Hicks and J. Eeigor executed to Harrison & Co. two promissory notes each for $700, one payable
This suit was commenced upon these two notes more than four years after the maturity of the one first falling due, and the statute of limitations having been pleaded, the question is: Was suit upon the last barred?
That the effect of the agreement was to authorize suit or give a right of action upon the last note at the same time that it could be commenced upon the first cannot be doubted. By the express terms of our statute of limitations it commences to run from the time when the cause of action accrues.
It is immaterial from what cause a note becomes due so far as the right of the holder to enforce it by suit is concerned.
It would seem to follow as a necessary corollary that the maker can, in the one case as in the other, avail himself of any failure to sue ivithin the period of limitation.
The purpose of statutes of limitation is “ to compel the settlement of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rests is yet fresh in the minds of the parties or their witnesses.” Wood on Lira., § 5.
If the holder of a note may, at his option, treat the claim as due at a later date than the maker has agreed that it shall mature, and thus prescribe a different date at which it shall be barred, the evidence for its enforcement may be preserved, whilst that for its resistance may be destroyed, and thus the purpose of the statute be wholly defeated.
In the case of Hemp v. Garland, 45 E. C. L., 519, it was held that though the contract left it optional with the plaintiff to sue or not for the whole debt upon default in the payment of any one instalment of principal or interest, the statute would commence to run from the date of such default upon the whole demand. This is put upon the principle that limitation runs from the time when the action might have been brought; and that the option of the plaintiff could not affect the right of the defendant, who might well consider the action as accruing from the time that the plaintiff had a right to maintain it.
We have not found any case holding a contrary doctrine. This case has been somewhat criticised, on the ground that the facts brought it within the principle that no one is bound to take advantage of a forfeiture; that the creditor is not compelled to treat the
When suit is left to the option of the creditor, and he fails to bring his action for the whole debt upon the non-payment of one instalment, the debtor may possibly be authorized to construe this as an exercise of option in favor of postponing the maturity of the unpaid instalments. He may be justified in supposing that if he had incurred a forfeiture, the creditor had elected not to take any advantage of it, and may be chargeable with knowledge that limitation would be computed accordingly.
But if the creditor cannot postpone the maturity of the debt, and hence cannot waive the forfeiture, if such it can be termed, the debtor cannot, of course, be charged with nbtice that he has done so. He must regard his rights under the statute of limitations as still governed by the terms of the contract, and after the statute has interposed its bar by the lapse of the prescribed time from the maturity of the contract as provided by the parties, the creditor cannot claim that he waived the forfeiture, and extended the time for payment, without the knowledge of the debtor, and thereby defeat a legal defense to which the latter would be otherwise fully entitled.
We are of opinion that there is no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered April 28, 3885.]
