39 Barb. 634 | N.Y. Sup. Ct. | 1863
By the Court,
On the 9th of May, 1848, the plaintiff loaned or left with the firm of Slate, Gardner & Howell, the sum of $1000, and took from them a receipt of which the followiüg is a copy :
“ $1000. New York, 9th May, 1848.
Received from Captain William H. Payne one thousand dollars, which is to his credit on our books at six per cent interest. Slate, Gardner & Howell.”
The firm at that time was composed of the defendants and one Silas S. Howell, since deceased. In April, 1850, the firm was dissolved and a new copartnership formed, composed
If the debt is deemed to have become due and payable the moment the money was left with Slate, Gardner & Howell, (which I shall presently attempt to show it was not,) then I think the defense of the statute of limitations is made out, for it has been definitely settled, in this state certainly, that one copartner could not, after the dissolution of the firm, bind his copartner by a new promise, or revive a debt barred by the statute of limitations by a promise or by a payment of principal or interest, made either before or after the lapse
Was the debt so due and payable ? If so, how and when did it become so. due and payable, and by what means, whether by force of the contract itself, or by force of some
Howland v. Edmonds, decided in the court of appeals in March, 1862, and reported in 23 Howard’s P. R. 152, does not conflict with Todd v. Merritt. That was not a loan of money, nor was it a loan on interest expressed in the contract. It was upon a stock note given to a mutual insurance com-
It seems to me that in receding from the rule which heretofore prevailed upon this class of notes in respect to the indorser, the courts must also recede from it in regard to the maker. It would be contradictory and absurd to say that such a note is due and payable immediately and without any demand, for the purpose of maintaining an action against
Brown, Scrugham and Lott, Justices.]
The judgment should be affirmed.