Pittman v. Elder

Hall, Justice.' The question made' is, whether a debt coming within, .the limitation act of March 16th, 1869 (Acts, p. 133), — 373 — which not only bars the right of action, but extinguishes the debt, can be revived by a new promise in writing made after the lapse of the period in which the act prescribes for the bringing of the suit, without an additional-consideration for the promise. The court held, on demurrer to the declaration, that the past indebtedness, which had never been paid to the owner of the claim, was a sufficient consideration to support the promise, and to entitle the plaintiff to her action; and such have been the rulings of this court in cases strictly analogous, as where the party making the promise has been discharged from liability by' a final certificate in bankrupt cy. Weatherly vs. Hardman, 68 Ga., 592; Ross vs. Jordan, 62 Id., 298, as to debt barred by statute of limitations. Bat were this a question of first impression, we should feel no difficulty in upholding the judgment overruling the demurrer, upon principles; recognized and acted upon from an early period in England, and since invariably followed by the courts both of that and of this country. That principle is so well stated and fully illustrated and sustained in 1 Wharton on Contracts, §513, that we cannot do better than to extract from this learned and accurate author who says, “ An apparent exception to the rule that a moral obligation is not a sufficient consideration to support a promise is to be found in the rule still recognized that the fact that a debt once binding has been discharged by law without satisfaction to the debtor is sufficient consideration to pay the debt. This has been held where a bankrupt promises to pay a debt discharged in bankruptcy; and a fortiori of promises barred by insolvent discharges, such discharges being only locally effective. The same view has been taken in regard to' promises to pay a debt barred by the statute of limitations.But the validity of promises of this class • is no longer placed on the consideration of moral obligation. The liability is now based exclusively on the right of a party to waive the protection of a statute relieving him from indebtedness. 1 Where the consideration was originally — 374 — beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it,’ ” as was said by the entire court in Earle vs. Oliver, 2 Ex. R, 90. “ And it has been held in this country that a promise to pay a debt which has been voluntarily released is void as without consideration. In connection with the position before us may be cited the rulings of the courts that parties to negotiable paper, discharged for want of notice of dishonor, become liable, if, after notice of such discharge, they promise payment. Whether the party promising had notice is to be inferred from all the facts of the case. Under the same head are sometimes classed promises by infants, which, it'is alleged, are subject to ratification when they reach majority, and promises of married women renewed after divorce or their husband’s death. But the analogy with the case of an infant fails from the fact that the promise on his part, according to the better view, always bound, though not capable of enforcement during his minority, and was subject to repudiation upon his majority. A married woman’s promise, on the other hand, is at common law a nullity which no subsequent promise can resuscitate.” The italics in the above extract are ours, and have been resorted to in order to point out the difference that undoubtedly exists between such original debts as could have been enforced at law, before they were 'barred and released by the application to them of common law rules and statutory enactment, and such as never could have been so enforced. According to all the authorities so copiously cited by this and other authors, this fact furnishes' the test between such obligations as were purely voluntary in their origin, and are incapable of ratification or revival by a subsequent promise, and such as, being originally valid and capable of enforcement until barred or released by law, — 375 — are, for that reason, deemed a sufficient consideration for the renewed promise. This section from Wharton should be considered in connection with that which immediately precedes it, in order to get its full force and precise application, and to appreciate fully the distinction here pointed out between such discharged contracts as will afford of themselves a sufficient consideration for the promise and such as will not. The law on this subject is well summarized in 1 Addison, on Contracts, §13, and the authorities cited in note 1 there and other notes fully sustain the view presented. See especially the well considered and ably argued case of Shepard & Co. vs. Rhodes and another, 7 Rhode Island R., 472, 474; also the exhaustive note (a) to Wennall vs. Adney, 3 Bos. & Pull., 249, where the old cases upon the subject are classified and explained in a manner which has met the approval of succeeding judges, both in this country and in England; Shepard & Co. vs. Rhodes and another, ui sup.. and the masterly judgment of Lord Denman in Eastwood vs. Kenyon, 11 Ad. & Ells, 438 (39 E. C. L. R., 142 et seq)r This note, so generally adopted, restrains and limits the sweeping and broad views attributed to Lord Mansfield in his numerous judgments upon the subject, and vindicates him in large measure from what the annotator deems erroneous conclusions, inconsiderately drawn from expressions dropped in the course of his decisions. He especially relies upon Trueman vs. Fenton, Cowper’s R., 544, 547, 549, which, we think, is a case well worthy of careful study and serious consideration, and, as explained by later decisions and text-writers, accurately sets forlh the law upon this interesting and highly important question. We do not understand that the provisions of our law (Code, §§1950, par. 6, 2542, 2934), requiring a promise to waive a debt barred by the statute of limitations to be in writing, are ¿ither inapplicable or repugnant to anything contained in the act of limitations of the 16th of March, 1869, nor do we think that act interferes with, or in any manner — 376 — affects, such requirements. Even if it b’é conceded' that it applies, only to a specified and special class of cases, and' takes them out of the general provisions of the Code upon that subject, it does not follow as a necessary consequence that the statute destroys the debt so effectually that it cannot be revived; all that it does is to open the courts to the debtor and invite him to enter and protect himself from his obligations by pleading its provisions in bar of a recovery. It does not compel him to do this any more than it constrains him to insist upon that or any other rule of law established in his favor, but he may waive or renounce It, when he does not by so doing injure others or affect the public interests or abrogate or do away with"enactments' made for the preservation of public order or good morals.’ Code, §10 and citations. Peel vs. Bryson, 72 Ga.,.331, 337, 338, which is directly upon the statute in question, and affords an instance of an implied waiver of its benefits, recognized and enforced by the courts; and such implied waiver is not more efficacious and is not to be more highly regarded than an express waiver in writing made with a view to renounce this benefit and signed by the debtor. It is not readily perceived how it would promote public order or good morals, or how others would be injured or the public interests be advanced by prohibiting a party from acknowledging and promising to pay a debt which had never been discharged, and which he felt, in his conscience, that, as an honest man, he could not refuse to recognize and satisfy. That honesty is the best policy is generally, if not universally, conceded, and it will not be seriously contended by any one that our law discourages and prohibits rather than encourages and promotes the faithful discharge of obligations honestly undertaken. The cases of Dusenbury vs. Hoyet, 10 Bank. R., 313, and Way vs. Sperry, 6 Cush. R., 238, 241, relied on by the eminent counsel for the plaintiff, we think, with all due deference lo his high character as a man and a lawyer, and his varied and accurate professional learning, do not contravene but support — 377 — the view we have taken. There being nothing further in this record demanding consideration, it follows that we are of opinion the court below did not err, as alleged, in overruling the demurrer to plaintiff’s declaration, and therefore we order the judgment affirmed.