Burnham v. Brown

The opinion of the Court was drawn up by Tenmey J. The note in suit was made payable in three yearly instalments; and this action was commenced after the expiration of six years from the time, when the first became due; and it is.insisted by the defendant, that the statute of limitations upon which he relies, will apply to the first instalment. The statute provides, that actions founded on contract shall be commenced within six years next after the cause of action shall accrue and not afterwards. Stat. 1821, c. 62, <§> 7; Rev. Stat. c. 146, § 1. Did the cause of this action, so far as its object is for the recovery of the first instalment, accrue within six years before its commencement? The cause of an action of assumpsit is a promise, and its breach. The promise in the note declared on is entire, but to be performed ar. different times, applying equally to every payment to be made. It was broken immediately on an omission to pay tire first instalment, at the time specified in the note, as much as by the failure to fulfil the whole promise after every instalment became due. For this breach, before the others occurred, an action could have been maintained. The declaration would have been upon the promise, and the omission to fulfil it, in such an action, as it would have been for all the breaches, after they had been made. The right to maintain [402] such a suit is well established. In Tucker v. Randall, 2 Mass. R. 283, which was an action upon a note payable in several instalments, for the recovery of the whole amount, commenced after a part, but before all the instalments became due, Mr. Justice Sedgwick says, “ the promise and breach being well alleged, the rest is surplusage,” and judgment was rendered for the instalments payable before the date of the writ. Mr. Chitty, in his treatise on Bills, p. 662, says, “ the plaintiff is entitled to judgment for the instalments due, when the action was commenced.” Cooley v. Rose, 3 Mass. R. 226, and Hastings v. Wiswell, 8 Mass. R. 455, were actions for interest, which accrued before the principal became due, and .were maintained. It is insisted in behalf of the plaintiff, that the promise being entire and to pay a single debt, though at different times, the right of action for the first breach is not a permanent right; and as a distinct right, ceases, when other instalments in the same note become payable. If it be true, that the cause of action does not stand alone, and distinct, after other causes arise, or the original cause is enlarged, the first cause is not suspended; it remains unimpaired, notwithstanding another may be joined with it. There has been no time, when an action could not be maintained upon it, from the time it accrued. Suppose the second and third .instalments had been promptly paid, and indorsed as such, and this action had been brought upon the note, would not the statute of limitations be a bar ? And does the liability on the first depend upon a liability upon the second and third ? If a tender had been.pleaded in this action to the two last instalments, and the statute of limitations to the first, and the former had been proved, and kept good, we apprehend, the action, would be entirely barred. By omitting to bring an action for the first payment, till all became due, the time may be shortened within which .the action for the whole can be commenced without exposure to be barred by the statute, but this consequence is to be imputed to the parties who make [403] such a contract, and also to tho holder thereof, who exercises an indulgence to his debtor, which neither the contract or the law requires. Judgment for the two last instalments and interest thereon.