Reybold v. Parker

12 Del. 526 | Del. | 1887

Saulsbury, Chancellor :

Anthony Reybold caused a summons in an action of assumpsit to be issued against George A. Parker, Samuel M. Felton, Samuel Harlan, Jr., and Jesse Lane on the 9th day of November, 1875, which summons was returned, “ Summoned personally, November 22, 1875.”

All the defendants appeared by their attorneys.

The declaration was upon joint promises by the original four defendants.

Among the pleas pleaded, was the statute of limitations.

To this plea the plaintiff filed a replication as follows, “ And the said plaintiff, as to the said plea of the Act of Limitations by the said defendants jointly above pleaded saith that the said plaintiff by reason of anything by the said defendants, in that plea alleged, ought to be barred from having and maintaining his aforesaid action thereof against the said defendants: because he saith that the several causes of action in the said declaration mentioned, accrued against the said defendants and the said Jesse Lane, now deceased, jointly : that the said defendant George A. Parker, before and at the time when the several causes of action in the said declaration mentioned, and each and every one of them accrued to the said plaintiff, was out of the State of Delaware, to wit: at a place unknown to the said plaintiff: and that the said defendant George A. Parker, afterward, to wit: on the first day of January in the year of our Lord one thousand eight hundred and seventy-five, came from without said State into said State; which said coming of the said defendant was his first coming from without said State into said State after the accruing of the said several causes of action, and each and every one of them, in such manner, that by reasonable diligence the said defendant, George A. Parker, could have been served with process.

And the said plaintiff further saith, that the said plaintiff commenced his said action against the said defendants, within three years after the said defendant George A. Parker’s said coming into said State, and this the said plaintiff is ready to verify. Wherefore he prays judgment,” etc.

To this replication the defendants below demurred, and judgment in their favor on the demurrer, was rendered by the Court below.

The question therefore before us under this Writ of Error to the judgment thus rendered, is whether in a suit against several joint debtors, where more than the statutory period of limitations has elapsed between the accruing of the cause of action and the bringing of suit where one of such debtors was out of the State, when the cause of action accrued and did not come into the State until within the statutory period next before the bringing of suit, the plaintiff notwithstanding the joint plea of the statute is not entitled to recover judgment against all the debtors sued ?

Can a plaintiff in a suit against all the joint debtors, recover judgment therein against all of them, there being four, notwithstanding three of them have never been out of the State, but always resident therein, and but one of them without the State, at the time of the accruing of the cause of action, but returned into the State within the statutory period next before the bringing of suit?

The provision of our statute in respect to limitations is: “ If at the time when a cause of action accrues against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor, after such person shall come into the State in such manner that by reasonable dilligence he may be served with process.”

Assumpsit was the form of action in the Court below.

Samuel M. Felton, Samuel Harlan, Jr., and Jesse Lane were resident in the State at the time of the accruing of the cause of action.

Parker, the other joint contractor, and one of the defendants was without the State, and continued without it until within three years of bringing the suit.

The contract being joint, and not joint and several, the cause of action was joint and not joint and several.

Reybold, the plaintiff in any suit he might bring on the joint-contract was necessarily compelled to make the other joint contractors defendants therein; because if any of the joint contractors liable as defendants was omitted to be made such in the writ, those who were sued might avail themselves of this fact by a plea in abatement, it being the established law, as remarked by Lord Kenyon, Ch. J., in Shepperd against Bailee, “ That the plaintiff must sue all the parties to the contract- on which he brings his action,” 6 Term, 329.

It is true that according to the usual practice in the Law Court in this State a plaintiff having brought a suit against all the persons liable upon a joint contract, and part only of them having been served with process and a return of non est made as to such as have not been served with process, may, if he chooses so to do, declare against those only upon whom process has been served, stating the return as to the others, and in such suit may recover judgment against those only upon whom process has been served, and who have appeared.

But what is the effect, of so proceeding ?

The plaintiff can recover no judgment against any of the co-contractors not served with process and not declared against, but any judgment which he may recover in said suit against these served with process, and declared against will merge any right of action or right of demand against each and every co-contractor not served with process, and not declared against.

They will not be parties to any such judgment, and his right, of action against such will be forever gone.

But is the plaintiff bound to pursue this course at his peril ?

The judgment which he may recover in such suit may, or may not be wholly worthless.

He is bound to sue all who are liable to him, as joint contractors on the contract, and has a right to judgment against all if a right of judgment against any.

I do not think it can be seriously contended by any one that had the plaintiff below sued Parker alone within three years after his return into this State judgment could have been rendered in favor of the plaintiff.

Parker could have pleaded in abatement the non-joinder of his co-contractors, and thus have defeated the suit.

If the plaintiff should have recovered judgment previously against Felton, Harlan and Lane, who had never been without the State, Parker could have pleaded that in bar in the suit against him severally, and thus have defeated the action, because the judgment against them would in law have merged the cause of action against him.

In the case of Fannin v. Anderson, 53 E. C. L., 811, it was decided that if a right of action accrue against several persons, one of which is beyond seas, the statute of limitations does not run till his return, though the others have never been absent.”

This decision, it is true, was made under Statute 4, Anne C., 16, S. 19. But the principal rule must, I think, prevail in this case.

Lord Denman delivering the judgment in this case says: “The plaintiff cannot bring the absent defendants into court by any act of his, and therefor if he be compelled to sue those who are within the seas within six years without joining those who are absent, he may possibly recover against insolvent persons and lose his remedy against the solvent ones who are absent.

On the other hand, if he sues out a writ against all, and either continues it, without declaring, or proceeds to outlawry against the absent parties, and declares against those who are within seas, he is placed precisely in the same situation as if the statute of Anne had never passed, and obliged to incur fruitless expense, the avoiding of which seems to have been the object of this statute of Anne. That statute he says, “ cannot have been passed in order to keep the plaintiffs remedy alive: for such object was easily obtained before the statute by suing out a writ and continuing it.”

We think that the statute intended to render such a form unnecessary wherever by the reason of the absence beyond seas of any of the intended defendants, the plaintiff cannot have his complete remedy against all those who he is bound to sue, and whom he would indeed be bound under risk of a plea in abatement to sue, if they were within the jurisdiction of the Courts of England.

By Sec. 8, Chap. 42 of the 3 and 4 of William IV, it was provided that “ no plea in abatement for the non-joinder of any person as a co-defendant shall be allowed in any court of common law, unless it be stated in such plea, that such person is resident within the jurisdiction of the court, and unless the place of residence of such person shall be stated with convenient certainty in an affidavit, verifying such plea.

We have no such provision of law in this State. Here, a simple plea in abatement of the non-joinder of a co-contractor verified by affidavit would be sufficient without stating that such co-joined contractor is a resident within the jurisdiction of the Court.

The case of Fannin v. Adderson decided in 1845 was followed by Towns et al. v. Meade in which it was decided that under 4 Anne C. 16, S. 19. If a right of action accrue against several persons, one of whom is beyond seas, the statute of limitations does not run until his return or death, though the others have never been absent.

In this case Jervis, C. J., remarked, “ That at the time of the passing of the statute of Anne it was well known that you could not effectually sue one of several joint contractors without joining the others.”

The bare giving liberty to sue one who is abroad at the time the cause of action arises within six years after his return from abroad while it relieves you from the necessity of suing the absent party, indirectly takes away the operation of the statute of James, because you cannot give leave to a plaintiff to sue one of several joint contractors on his return from abroad unless you suspend the remedy against all at the same time; and if so the statute never runs at all.

The counsel for the defendants reminds us that the mode in which the English Parliament dealt with this subject shortly after the case of Towns v. Meade, demonstrates very clearly the opinion that that legislative body entertained of the policy and justice of the ruling in that case.

What did the Parliament of England do ? They did not declare that the law had been wrongly decided, but they passed an Act changing the law as it existed at the time Town v. Meade was decided, and this change appears 11 Sec., 19 and 20, Victoria, C, 7.

But those provisions have no existence in the State of Delaware, nor do similar provisions of law exist here.

It is believed that where decisions exist in the several American States differing from the principles decided in Town v. Mead and Fannin v. Anderson, those decisions have been made upon statutes passed since those decisions; but no similar statutes have been passed in this State.

In deciding this case which is one of first impression here, shall we follow the decisions in Fannin v. Anderson and Town v. Meade, or shall we adopt the doctrine laid down in the case of Brown v. Delafield, 1 Denio, 445.

If we had a statute in this State similar to the one which seems to have existed in New York, at the time Brown v. Delafield was decided we might very properly perhaps adopt the doctrine announced in that case.

That case decided, that in assumpsit against several debtors, it is no answer to a plea of the statute of limitations that one of them within six years from the accruing of the cause of action departed from the State, and continued absent until the commencement of the suit, and that all the persons liable upon a joint contract must depart from the State in order to arrest the running of the statute against the demand.

Beardsley, C. J., in that case said; “That here was the cause of action on a contract against two persons; one of whom departed from the State within the period of limitation, but the other continued to reside within it.

Such a case, he says, is not within the terms of the section, (2 Rev. Statutes, § 27.)

This language, he says, quoted in the words of the statute "plainly refers to a cause of action against one person alone, and not where it exists against several persons jointly.

Again, he says, nor is it within the spirit.

Here one of the defendants remained within the State, and both might at any time have been sued under the act relating to proceedings against joint debtors, and the plaintiff: would thus have had judgment against both.

On the return of the absent defendant an action of debt might have been brought against him and his co-defendant therein on the judgment so recovered.

Surely we have no such provision of law in this State.

While therefore the case of Brown v. Delafield might be regarded as good law in New York, if there are no decisions in that State overruling it, as was said to be the case in Denny v. Smith, 18 N. Y., 567, it cannot be regarded as authority, or even persuasive here, because the conditions and statutes under which it was made have no existence here.

I do not consider it necessary to review other cases cited, either by the plaintiff or the defendants in error.

The points decided in Fannin v. Anderson and Town v. Meade, seem to be sound in principle.

The contract upon which the suit below was brought, being a joint contract and not a several contract, and the plaintiff below being entitled to a complete remedy against all the defendants, the principles ruled in these two cases must rule this case, unless there be something in our Acts of Assembly which excepts it from such ruling.

The counsel of the defendants seem to think they find such cause of exemption under the rules of construction of statutes Chapter 5 of the Revised Code; the second of which rules applicable as they suppose to this case is, “ that every word importing the singular number only may extend to and embrace the plural number : and every word importing the plural number only, may be applied and confined to the singular number, as well as the plural.”

These rules the Legislature have declared, shall be observed in the construction of statutes, uidess such construction would be inconsistent with the manifest intent of the Legislatue, or repugnant to the contest of the same statute.”

I do not think that the rule of construction as thus prescribed by the Legislature, will aid the contention of the defendants in this cause.

It cannot be adopted in respect to this case because it would be in direct conflict with the right of the plaintiff as expressly provided in our Act of Limitations, which expressly provides that “if at the time when a cause of action accrues against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor, after such person shall come into the State, in such manner that by reasonable diligence he may be served with process.”

The action to which the plaintiff was entitled to, was a joint action, and not a several action against Samuel M. Felton, George A. Parker, Samuel Harlan, Jr., and Jesse Lane, as joint contractors, and not several contractors.

The action to which the plaintiff was entitled was against these four persons, and the action which was saved to him under the provision cited, was the same action which accrued to him during the absence of Parker from the State.

The statute does not pretend to save any other action than this joint action.

It does not give to him, nor profess to save to him any other action.

If after the return of Parker the plaintiff had brought any other action than the action against all the four contractors, he could not effectually have prosecuted it, by reason of the non-joinder of the other co-joint contractors with Parker.

Had the plaintiff sued Felton, Harlan and Lane without joining Parker as a defendant he would have been defeated by the interposition of a plea in abatement, and had he sued all the four and had a non est returned as to Parker, and declared against the other three, and recovered judgment, his cause of action against Parker would have been gone, because the claim against him would have merged in the judgment so recovered.

The provision of the Act even when considered in connection with the rule of construction before cited, cannot reasonably be intended as saving to the plaintiff the right of a separate action as against Parker.

We cannot, therefore, give such a construction to our Legislation upon the subject of limitations of actions, as to destroy a legal right of the plaintiff, and, therefore, in my opinion the Act of Limitations as pleaded in this cause is not a sufficient bar in law to the plaintiffs right of recovery in this action.

The judgment below is reversed.

Houston, J.:

When this case, the first of its kind in this State, came up for a hearing in the Court below, I was very much struck, as other judges often have been in similar cases with the singular fact then first learned in it by me that it was an action of assumpsit on a verbal contract between the plaintiff and the four joint defendants named in it which had not been commenced until some ten years had elapsed after the accruing of the cause of action, and that two of them who were men of large wealth had been residing ever since in this State and in this city, whilst the third one of them had been residing but comparatively a few miles beyond the limits of them, and during that time had repeatedly been in the State and in this city, and that the fourth one of them only, Mr. George A. Parker, had been residing out of the. State, and as far from it only as the city of Boston in the State of Massachusetts, and had not been in this State in the mean time, nor until the com-; mencement of the action against them all jointly. The primary limitation by the statute to such an action of assumpsit is three years simply, but thrice three years and more had stolen in silent slumber over what assumed now very much the aspect of a stale demand when so presented for the first time to my imperfect apprehension and surprise at the novelty of it. The replication to that plea was that the said George A. Parker, one of the said four joint defendants, when the said cause of action accrued against them was out of this State, and that the said action was commenced against them within three years after the said George A. Parker, the said defendant, first came into the State thereafter in such manner that by reasonable diligence he could be served with process, the secondary limitation of the statute therein referred to being in the following words :

“ Sec. 14. If at the time when a cause of action accrues against any person, he shall be out of the State, the action may be commenced, within the time herein (before first) limited therefor, after such person shall come into the State in such manner that, by reasonable diligence, he may be served with process.” Rev. Code, 730.

This being the first case of the kind that has ever arisen under this provision of our statute of limitations, and the striking hardship of its application to three out of the four defendants who could have been served with process in the State at almost any time within that long period of ten years, at once gave rise to the grave and serious question presented in the demurrer, and ably and elaborately argued by the learned counsel on both sides, whether such a case as this is within the terms and the true meaning and intention of the saving contained in the fourteenth section of the statute as before stated. The words of the section, “ if at the time when a cause of action accrues against any person, he shall be out of the State,” &c., it was contended were not only in the singular number, but were intentionally so inserted and employed in it, and were not intended by the Legislature to be interpreted or understood in a plural sense, as equivalent to the terms “ person or persons,” or as intended to apply to any case in which there were two or more defendants parties to the cause of action, and one of them only was out of the State when it accrued. For with such a construction given to these words of the section, no such hardship could arise as characterizes this case, or any such gross inequality in the legal condition of the defendant as disfigures it; and therefore the Legislature could not have intended that the words here used should in any contingency have any other meaning than that which the person in the singular number plainly and naturally imports. By such a construction of it the court avoids any inherent inconsistency or contradiction in the application of the saving to this or any other similar case because it involves even an absolute absurdity to hold that it can apply to save the action as against three of the defendants who at any time after the accruing of the cause of it, could easily have been served with process in this State, while the sole ground, as given in the statute itself, for applying it to the other defendant is because he was out of the State when the cause of action accrued and did not come into it so that he could be served with process, until ten years afterwards when the action was commenced; and for that very reason the court was bound to consider and conclude that the Legislature did not intend that the saving should ever apply to such a case as this. Capelle & Duncan v. Baker’s Executrix, 3 Houst., 344.

And such being the inclination of my mind on that point at the same time it occurred to me that under the long-established practice in the Superior Court of this State it was competent for the plaintiff below at any time after the cause of action accrued, to commence the action against all the defendants jointly by having process issued and served on the three, two of whom were living in this State and the other frequently coming into it from his residence in Pennsylvania not many miles above the boundary line between the two States, and returned by the sheriff served personally on them, and non est as to the fourth defendant, Mr. Parker, who was out of the State and could not be served with it, and then with such a return of the writ, and the usual recital of it in the declaration as to the defendant who is returned non est and does not appear to it, to proceed in the prosecution of the action, as is the usual custom and practice in such cases in that court, against the other defendants to judgment and execution, if necessary, for the amount of it, leaving them after their payment of it to their legal remedy and redress against their absent co-defendant to enforce contribution of his just proportion of it. In such a case as this by the common law the plaintiff would have to proceed to outlawry against the absent defendant and complete the proceeding before he can recover judgment in the action against the other defendants who have been served with process and appeared to the action. But as it is conceded that the proceeding by outlawry at common law is wholly unknown in this State, I was inclined to think that the long established practice in the Superior Court of it, before referred to might have been adopted as a substitute for it, or for the purpose of enabling the plaintiff in such a case to proceed with the prosecution of the action to judgment against the defendants who had appeared to it, without the necessity of resorting to any process of outlawry against the defendant out of the State, and without taking any further notice whatever of him in the prosecution of it against the others who were the only parties defendant before the Court in the action. And if such had been- the practice in the Courts of this State in such a case as this, then the plaintiff had been under no disability of suing all and recovering- judgment against the defendants appearing to the action at any time since the accruing of the cause of it by adopting this method of prosecuting it against them only whilst their co-contractor was yet out of the State and the jurisdiction of the Court in the case, then my opinion was that the plaintiff’s right of action in the case was barred by the primary limitation of the statute, that is to say, after the expiration of three years from the accruing of the cause of action in it.

But I am now obliged to say that a further consideration oí both of these points, and the more thorough argument of them in this court, my opinion has undergone a radical change upon each of them, and that I now think that as the contract sued on in this case was a verbal and joint contract merely between the plaintiff and the four defendants named in the action, and was not a joint and several contract between them, as it would have been under our statute, Revised Code, 357, Sec. 9, had it been reduced to writing in the same words, unless otherwise expressed in it, for such is the general rule of the common law, that when the action is upon a contract which is a joint contract only, and not joint and several, and there are several joint parties to it on the one side to be sued upon it, they must all, if still in being, be joined as defendants in the action, and it must not only be commenced, but it must be prosecuted against them all jointly and to a joint judgment against them in case of recovery, for there can be no action against them severally, or recovery of judgment against them severally, or against any one or more of them less than the whole nnmber of them. There are some exceptions to this rule, as where one of the joint parties to the contract was á minor when he entered into it, and who by another well-known principle of the common law is only bound on contracts for necessaries furnished him, or has become a bankrupt since entering into it, and who by statute has been released from the legal obligation of his indebtedness upon all his contracts up to the time of his certificate of discharge in bankruptcy. But the general principle of the common law as before stated is certainly quite as rigid and inflexible as it is thus represented to be, and as under the operation of it the plaintiff, Mr. Eeybold, could not maintain an action upon the contract against one or more of the defendants, but was compelled by it to sue them all jointly and to recover against them all jointly, or to recover against none of them, and he therefore could not be bound to commence his action against them after the accruing of the cause of it, until the joint process in it with which he had to commence it against them all jointly, had been served upon each and all of them in the State, for the design of the Act of Limitations is to bar such actions only as the party plaintiff has a legal right to effectually maintain and prosecute to recovery of judgment against • the party defendant in any case. It was, therefore, wholly unnecessary to provide by statute for the limitation and bar of any action commenced without a legal right to effectually maintain it.

I had also become convinced in the meantime that no such practice as before stated could have obtained in the.Court below in such a case as this to warrant a recovery of judgment against three of the defendants who could have been promptly served with process after the cause of action accrued, without service of it on the other and fourth defendant who was then out of the State and was out of it until some ten years afterwards, in the mode suggested in my opinion in the Court below; and having no statutory provision whatever in this State, such as several of the other States have, to meet such a case involved in such a striking, and to the Court, such an embarrassing contingency as this proved to be, I have since the argument of the case in this Court only been the more convinced, and particularly by the rulings of the Court of Queen’s Bench in the case of Hannin v. Anderson, 7 Ad. & Ell., 811 (opinion by Denman, C. J.), and Town v. Mead, 16 Com. B., 123, that I should renounce the opinion which I then entertained and expressed on that point in the case.

But as to the other point in the case I was not prepared to hold upon the argument of it in the Court below, that the words “ any person ” contained in the section and saving in question should be read and understood in the singular number only according to the plain and natural meaning of the word “ person ” in the singular number, and in this case, should be so construed by the Court, and as not applicable to it in the meaning and intention of the Legislature when it was enacted, because it was against four persons, but one of whom was out of the State and beyond the reach of the process of the Court when the cause of action accrued. There are but few questions more perplexing than to solve the meaning of one or more words in a statute in regard to a particular case, if there be in the apprehension of the Court any room for doubt or dispute over it by any of the rules of construction which have been laid down in the books for that purpose; but when the Legislature itself has by a statute laid down a rule defining the meaning and import of any such word or words occurring in a statute, it is of paramount weight and authority, and should dispose of the question. Among the rules for the construction of statutes enacted by the Legislature, the second is as follows: “ Every word importing the singular number only, may extend to and embrace the plural number; and every word importing the plural number only, may be applied and. confined to the singular number, as well as the plural,” &c. Whilst the tenth rule is in these words: “ The word ‘ person ’ may extend to and include bodies politic and corporate, as well as individuals.” Rev. Code, 24, 25. And which in that Court I considered solved the question of the construction to be given to the words “any person” in the 14th section of the act of limitations in favor of the contention of the plaintiff in that Court, and I think so still. And I therefore concur in the opinion of this Court that the judgment in the Court below in this case should be reversed.