68 Ky. 579 | Ky. Ct. App. | 1869
delivered the opinion op the court:
This was a suit by appellants against appellees on a note for three hundred dollars, executed to Mrs. Walker
In the summer or fall of 1865,* Sayers wrote to Mrs. Walker: “You need" give yourself no uneasiness about the money; you shall have it this fall, certain.”
April 12, 1866, Hopkins wrote to Mr. Walker, saying, among other things: “Mr. Sayers was here yesterday, and says he is ready to make his part of the payment. I have some money due me on 12th day of next month. I have notified the parties that I will need it, and they say they will be sure to have it; so if you will come up on 13th or 14th you will be sure to have it.”
The evidence induces the belief that this letter was written by Sayers, though in the name and at the instance of Hopkins, though some of the witnesses say it resembles Mrs. Sayers’ handwriting, whose writing is very similar'to that of her husband.
Walker, who lived some forty miles distant, and in another county, did come, according to said invitation, to get the money; but, instead of making payment, Hopkins informed him that the debt was barred by the statute of limitations, and they did not intend to pay it; and when suit was brought on it, the 11th of the following July, they demurred to the petition because said debt was, as they insisted, barred; and which demurrer was erroneously confessed, and an amended petition filed, setting out the facts and said letters.
The day named by Hopkins to pay the money was six or seven days after the expiration of seven years from the date the note was due, and the day suit was brought was seven years, two months, and five days from the time it was due.
It is provided by section 15, chapter 97, 2 Stanton’s Revised Statutes,. 401, that “if any surety shall abscond, conceal himself, or by removal from the State or otherwise, obstruct or hinder his being sued, the time of such obstruction shall not be computed as part of time of limitation in said sections allowed — referring to the tliree preceding sections, one of which provides for the release of securities after the lapse of seven years from the accrual of the right of action, without suit having been brought. In Coleman vs. Walker, &c., 3 Met., 68, this court expounded the exception to the exception to the statute of 1838 (3 Statute Laws, 559); but the language in that statute is, “ or by any other indirect ways or means defeat or obstruct any person or persons, who have title thereto, from bringing or maintaining any of the aforesaid actions, within the respective times limited by this act,” then said bar shall not apply; and in said case this court held that the words “ defeat or obstruct,” as used in this, act, signify the performance of some act on the part of the sureties which will amount to a prevention or hindrance of a suit in opposition to the will and rights of a creditor, such as he cannot, with reasonable diligence, overcome. The terms, said the court, import resistance and obstruction to his rights, and unless the acts complained of are, in point of fact, such as would hinder and prevent him from bringing the suit, notwithstanding his desire to do so, they cannot properly be said to defeat or obstruct such suit.’’'
Without stopping now to discuss whether this construction was not too literal and narrow, and a sacri
The terms used in this latter statute are, “ or otherwise obstruct or hinder;” and not, as in the former, obstruct and defeat. There is certainly a distinction between the words defeat and hinder. The latter, says Webster, means “to interpose obstacles or impediments,” whilst the former means “ frustration; a rendering null and void; to resist, with success,” &c. Now, there is nothing clearer than a promise made to a confiding creditor that the debt should be pgid at a named time, and which the creditor relied upon, is both an obstacle and impediment to the bringing the suit.
1. Because the creditor thereby is induced to believe he can get his money sooner than by suit, and without the expense of litigation.
2. Having received this promise, and relying on it and consenting thereto, he cannot bring suit without a violation of this express or implied assent.
3. To disregard such a pledge, and, notwithstanding, bring suit, is virtually to dishonor the sacred word and pledge of his debtor, and say to him, I put no faith in your word; which is at all times unpleasant and often unprofitable. That such a promise by the debtor should be regarded as a hindrance, when relied on and accepted by the creditor, is not only consonant with good morals, and that faith that should exist and be encouraged be
Wherefore, the judgment is reversed.