1 Kan. 437 | Kan. | 1863
One Wm. Goodrich, on the 4th of March, 1858, made his promissory note to Bradley, the defendant in error, due thirty days after date, and Boot, the plaintiff in error, guaranteed the payment of it at maturity. Goodrich died in August, 1858, after having made an arrangement with one Smith for boarding Bradley and applying the price of board on the note. Bradley received board both before and after Goodrich’s death, pursuant to that agreement.
Boot, the plaintiff in error, became administrator of the effects of Goodrich, and Smith applied to him to allow his claim against the estate of Goodrich for that board. Boot said if the probate court would allow the claim he had no objection to do so. It was presented and allowed by the probate court, and by Boot’s direction indorsed on the note, pui’suant to the original agreement with Goodrich. This action was commenced on the 80th day of August', 1861 — more than three years after the note fell due — in the district court, to recover the balance of the note from Boot. Boot sets up , the statute of limitations as a bar, and the above facts appearing, the court rendered judgment against him for the .•balance of the note, which judgment the plaintiff in error -> now seeks to have reversed on the ground that the demand was barred, as to him, by the statute of limitations, which went into force the 1st of June, 1859.
The defendant insists that the statute does not apply to causes of action existing when it was passed.
In Elliott vs. Lochnane et al., decided at the January term, 1862, this court held that the limitation law, passed February 12th, 1858, entirely similar to the present, except in the time necessary to bar an action, did apply to such causes of action, and that the time for commencing that action was extended one year, by the substitution of that act for the preceding one, prescribing a shorter limitation. In that case the cause of action was in existence before the passage of the law of
Was the case taken out of the operation ,of the statute by the indorsement made for board furnished to Bradley ?
The record shows that Smith rented a house of Goodrich, and by agreement of Smith and Bradley and Goodrich, Smith was to board Bradley, in payment of his rent, and the price of the board was to be applied in payment of the note in question. Under that agreement, thq board received by Bradley would operate as paymenU’bf Smith’s rent to Goodrich, and as payment pro tanto of'the' note Bradley held against Goodrich. This agreement the probate court, in allowing Smith’s account against Goodrich for boarding Bradley, sanctioned and adopted, and the payment of the note to that extent was perfect,' without any indorsement upon it.
The indorsement was an admission by the holder of the note of a payment already made. It could affect no rights between the estate of Goodrich and Bradley, except to give the administrator of the former more ready means of proving a payment already made ; and the request of Root, as administrator, to have such evidence (for that is what his diriction to make the indorsement amounts to) as clearly could not affect his right to plead the statute in an action against him individually for the balance of the note.
Section thirty-one of the code prescribes what shall be necessary to take a case out of the operation of the statute after the time, allowed by the act, shall have elapsed. It must be a payment of some part of the principle or interest, or “ an acknowledgment of an existing liability, debt or claim, Or a promise to pay the same,” “but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
There is no pretence of any such acknowledgment or promise by Root, but it is argued that a 'payment on behalf
It was held by Lord Mansfield in Whitcomb vs. Whiting, (2 Doug. R., 652,) cited in Angelí on limitations, (§ 248,) that the acknowledgment of one joint contractor would take the case out of the statute as to his co-contractor, and that precedent was long followed in England, and the doctrine indiscriminately applied to payment and other acknowledgment ; and the English authorities have been followed to some extent in this country. But in England later decisions have shaken that doctrine. (See Angelí on Limitations, p. 278, note 2 to § 260.) And in this country the current of modern authority is strongly in a contrary direction. (See §§ 259 and 260 of same volume, and notes citing numerous cases.)
But that question need not be decided here, as in this case the payment (if such it may be regarded) is made not by the joint contractor, but by the administrator of his estate, under direction of the probate court, and it has, we think, been constantly held, both in England and America, that whore the community of interest had been severed by tho death of a joint contractor, such admissions of a co-contractor would not bind the executor or administrator; nor those of the executor or administrator the co-contractor. (See Angelí on JLim., §§ 251, 252 and cases there cited.)
There is, therefore, neither payment nor other admission to deprive the plaintiff in error of the benefit of the statute.
The cause of action was barred, and the judgment against him is erroneous and must be reversed, with costs to the plaintiff, and the cause remanded to the district court with