24 N.Y.S. 317 | N.Y. Sur. Ct. | 1893
It is well settled that one of the joint and several makers of a promissory note cannot by his own act, in making a payment thereon, postpone or avoid the bar of the Statute of Limitations as to the other makers, and this is so whether the one making the payment is the principal debtor and the other makers are sureties, or whether the surety makes the payment. In any case a payment in order to have the effect of a renewal of the obligation or an extension of the time in which an action may be brought must be made by the party who is sought to be held, not necessarily in person, but by him or by his agent authorized to do that act for him, so that it is his payment. First National Bank of Utica v. Ballou, 49 N. Y. 155 ; Littlefield v. Littlefield, 91 id. 203.
In the case last cited, it appeared that the holder of a joint and several note long past due went to one of the makers, who was surety for the other maker, and in substance asked for payment. The surety asked the holder to wait until the maker came home, and sent the principal maker a message by the holder, saying, “ Tell him for me that he must pay the interest and as much of the principal as he can, and that I say so.” The principal maker came home, and the holder delivered the message as directed, and some months afterward the principal made a payment on the note and afterwards told the surety of making the payment, and the surety said that it was all right. It is clear that the effect of the acts of the parties was not otherwise than as though the surety had gone to the principal maker of the note and said to him, “ You must make a payment on that note, pay the interest and as much of the principal as you can; ” in pursuance of this direction the principal maker makes a payment upon the note, and soon
In the application of these principles to the case in hand I will first consider in what relation to the other maker of the note was Stillman B. Sanders. It is clearly shown that at the date of the note Petrie was the maker and Sanders one of the indorsers of a note held by William Reynolds, upon which
Reynolds was paid at Newport and Miss Harter went to Newport on the day of the payment with either Sanders or Petrie to furnish the $1,200. In support of this finding, some weight must be given to the fact that Petrie personally attended to making the payments. None of the indorsements are in Sanders’ handwriting, and all, except one made by Miss Harter, are in Petrie’s writing. There is no dispute but that nearly all the payments of interest were made by Petrie with his own funds. The fact, as testified to 'by Mary A¿ Farrington, the wife of the claimant, that in the spring of 1887, Sanders asked Miss Harter to allow him to take his name off the note, and her reply refusing, but without surprise at such request, and Sanders’ remark, following in the same conversation, that he should see that it was paid; that Petrie could have made enough on the place to have paid it long before now, but that she should have her pay, and that he considered that and one other as sacred, and that these were all that he was holden for, all this indicates a mutual understanding between Miss Harter and Sanders that Sanders was only a surety On the note.
I think it must also be found that the hay delivered to Miss Harter, January 1, 1887, to apply on the note, was the property of Petrie, and that Miss Harter so understood it. Petrie testified that, about the year 1871, he made an oral agreement with Sanders whereby he was to give Sanders $100
There was no direct contradiction of Petrie’s testimony in this respect, and he testified also directly that all the hay deliv-: ered to Miss Harter, as well as the other products of the farm delivered to her, all of which was applied upon the note in question or upon other notes of Petrie’s held by her, was his property. How, what is the testimony relied upon to show that Sanders, the surety, made a payment upon the note by Petrie as his agent, with and by means of the load of hay which was Petrie’s property. Yarnum S. Farrington, called as a witness in behalf of the creditor, testified that, at the request of Miss Harter, he delivered a message from Miss Harter to Sanders, as follows: “ I told Mr. Sanders that Miss Harter or Lainy wanted him to send her some hay for her cows, and he said that Petrie was not at home, and when Petrie came home that he would send the hay to her.” Mary A. Farrington, the wife of the creditor, was called as a witness in his behalf, and gave testimony concerning a conversation between Sanders and Miss Harter, in the spring of 1887, at her house, as follows: £< They talked for some time about church matters; then he asked if the interest had been paid on the note and she replied, not all of it; he then asked if she had any objections to his seeing that note of his and Petrie’s; she said no, and got the note for him to see; he looked at the note and seemed surprised, and asked if she had not had that hay; he said that he had told Petrie to bring the hay to apply on the note; he told him to do so and supposed that he had done so, and she replied that he had brought the hay, but that she and Petrie were in the habit of letting their accounts run and then footing them up and indorsing them in one indorsement.” In the same conversation Sanders made the remark “ that Petrie could have made enough on the place to have paid it long before now.”
It is claimed that this conversation referred to the hay delivered to Miss Harter by Petrie January 1, 1887, although it is far from clear that this was so, for, by the hay bills, it
Sanders, the surety, could not easily have supposed or intended that when Petrie, the principal debtor, was delivering his own property, in payment of his own debt, that he, the surety, was making the payment, although at the request of Miss Harter he had told Petrie to bring the hay.
It is evident that Miss Harter knew of no reason for treating any load of hay delivered about this time as a payment by Sanders, or any differently than any other of Petrie’s payments. She supposed the payments to be Petrie’s payments, for she told Sanders that Petrie had brought the hay, “ but that she and Petrie were in the habit of letting their accounts tun and then footing them up and indorsing them in one indorsement.”
A careful consideration of the circumstances and the inferences to be drawn from the testimony does not permit of the conclusion that Petrie was acting as the agent of Sander's when he delivered hay to Miss Harter about January 1, 1887, to apply as a payment on the note. Mr. Sanders did not make that payment. Therefore, the Statute of Limitations had barred an action on the note as against Sanders prior to his death, and the note and claim cannot be established as a debt to be paid out of Sanders’ real estate in this proceeding.