15 Abb. Pr. 377 | New York Court of Common Pleas | 1863
Lead Opinion
The plaintiff held notes of the defendant, dated respectively, March 8th, 1852, April 1st, 1852, and May 5th, 1852, and each payable six months after date. About the first of February, 1856, the defendant requested Mr. Hodges to “ get his creditors to do something so that they could not molest him for a couple of years, to enable him to go into business.” Mr. Hodges, acting upon this request, called upon the plaintiff to see if “ he would not molest the defendant for two years, so that he could go into business: the plaintiff agreed to it.” Mr. Hodges also said on the trial, “ I merely asked the plaintiff if he would extend the time, and he granted itbut the witness was not certain whether any paper passed. A paper was, however, presented by him, which the plaintiff signed, and the substance of which was, “We, the creditors of Elmor Thompson, agree not to sue or molest him for his indebtedness, or the debts owing to us by him, for two years from the 1st of February.” The contents were not stated exactly, because the paper was not produced. It was, however, in the possession of the defendant. The plaintiff states in addition to the substance of the paper already given, “ and at the end of that time the debt w'as to remain unimpaired. It was known as a letter of license, as near as I can recollect.” This statement was not contradicted by the defendant, although he did not embrace it in giving his version of the contents of the paper. This action was commenced within six years after the first note became due, allowing to
The paper signed was equivalent to an agreement not to plead the two years as a part of the Statute of Limitations. Such an agreement made during the running of the statute would be binding. (Utica Ins. Co. a. Bloodgood, 4 Wend., 652; Gaylord a. Van Loan, 15 Ib., 308.)
The defendant virtually asked the plaintiff to suspend any proceeding against him for two years, and having accomplished his object endeavors to avail himself of it to the prejudice of the plaintiff. Hot only in conscience, but in law, the defendant cannot be allowed to set up his own breach of faith or fraud in order to derive an advantage for himself to the injury of the person deceived by him. (Per Nelson, J., in Gaylord a. Van Loan, supra.) For these reasons I think the presiding judge was right in directing the jury to find for the plaintiff.
The case, however, admits of another view; the paper which the defendant caused to be presented to the plaintiff for his signature, may be regarded as a promise to pay, signed by the
The name of Elmor Thompson was sufficiently signed to the agreement, therefore, to conform to the section of the Code referred to. Assuming this to be the case, then, if the writing contains a promise, the operation of the statute is avoided. I think, as before stated, that it does contain a promise, and that the defendant should be held upon this view, as well as the one hereinbefore expressed.
The exceptions taken to the question allowed to be answered by the witness Barnard, were not well taken. The defendant’s counsel objected to proof of the contents of the paper signed by the plaintiff, as it was not signed by the defendant. The answer to the objection is, that the proof had already been given. The question, “ what did that paper refer to ?” was pertinent, because if the agreement did not relate to the notes in suit, the statute clearly applied to them. The paper itself did not designate the debts deferred. I can discover nothing in this case which would warrant a reversal of the judgment.
' It should be affirmed.
The debt sued for was barred by the Statute of Limitations, unless the writing, denominated a letter of license, which the defendant procured to be drawn up and presented to the plaintiff for signature, and which after being signed was returned to and retained by the defendant, must be regarded as an acknowledgment by him of an indebtedness then existing in the plaintiff’s favor.
The opinion of Senator Verplanck, in this case, shows clearly the legal distinction between the words “signed” and “subscribed,” when used in a statute: the former signifying what I have stated; and the latter meaning, subscribing the name at the foot of a written instrument.
The writing in question, tested by these views, was a sufficient acknowledgment of indebtedness by the defendant, within the terms of the statute, and operated as an extension of the time within which the plaintiff might bring his action.
Judgment affirmed.
Dissenting Opinion
The plaintiff entered into an agreement on the 17th of February, 1856, which was binding upon him, by which he agreed not to sue or molest the defendant upon his indebtedness for two years from that date. At that time the defendant was indebted upon three notes, due respectively in the months of September, October, and November, in the year 1852. The present action was commenced upon these notes on the 8th of March, 1860, more than seven years after the last of the notes fell due. The defendant pleaded the Statute -of Limitations, and the judge, at the trial, directed a verdict for the plaintiff.
The agreement, by the plaintiff, not to molest or sue the defendant for two years, which was entered into by him, with other conditions, and was in writing, cannot be regarded as an acknowledgment or promise, on the part of the defendant, in
It was held in the Utica Ins. Co. a. Bloodgood (4 Wend., 652), and Gaylord a. Van Loan (15 Ib., 308), that an arrangement by the debtor, entered into before the statute attached, that he would not avail himself of it, would deprive him of the right of setting it up as a defence; that to allow him to do so when the creditor, having relied on his promise, had suffered the six years to go by, would be upholding the debtor, to the creditor’s injury, in an act of bad faith; and that upon general principles, therefore, he should be estopped from setting up that defence.
The present, however, is not such a case. The defendant has neither expressly nor impliedly agreed to waive this defence; nor has the plaintiff, by adhering to any agreement entered into at the solicitation of the defendant, or otherwise, been deprived of the opportunity of commencing his action within the period required by law. He agreed not to molest or sue the defendant for two years, and he observed that agreement. But after that time had expired, seven months elapsed before the statute attached, and if he did not within that time commence his action, it was owing to his own neglect, and not to any further reliance upon any outstanding assurance or promise on the part of the defendant. The statute declares that the creditor shall commence his action within six years after the debt has accrued, or lose his remedy, and prescribes what disabilities—such as the absence of the debtor from the State, or the infancy, insanity, imprisonment, or coverture of the creditor—shall enlaz’ge the time, and to what extent. Where no such disability exists, the obligation is imperative to comznence it within the period named; unless the debtor has entered into some new acknowledgment or promise in writing, when the six years may be computed from the new engagement, ETo such new promise or acknowledgment was entez’ed into here, and I am at a loss to see how the agreement of the plaintiff, not to molest the defendant for two years, can be regarded as opez'ating as an estoppel in pais upon the ground that he acted upon it to the depri
The judgment should be reversed.
Judgment affirmed.