Downing v. Lindsay

Kennedy, J., after stating the facts arid the declaration.— The cause was tried upon its merits, and as if the promise had been alleged to have been made by all the defendants named as partners in the writ, and as recited in the declaration; so that no possible injury can result to the defendant on account of the defect and informality in the plaintiff’s declaration; and in order that it may appear at all times hereafter what was tried, and the cause of action that was decided and passed on by the court, between the parties, we think it right that the declaration should be amended, so as to show distinctly that the promise, for the breach of which this suit is prosecuted, is a promise made by the company, and not by the defendant alone; and accordingly direct that it be so considered. This amendment of the declaration disposes of the fifth, sixth, seventh, and eighth errors assigned by the plaintiff in error, and renders them of no avail; as will be more fully shown in the sequel. But the writ of summons, commencing this action, was sued out more than six years after tine cause of action first accrued, which furnished the defendant below with colourable ground at least for putting in and relying on the plea of the statute of limitations. In order, however, to repel the effect of this plea, the plaintiff below showed, by the records of the court, that a prior action had been brought by the plaintiff, for the same cause, against the defendant alone, -within the six years; to which the defendant pleaded, in abatement, that if he was liable at all, he was only so jointly with the persons, naming them in his plea, who are the same joined with him in the writ commencing this action. The plaintiff, believing that the plea was true, and such as the defendant could establish, declined taking issue upon it, but suffered her writ to be quashed, according to the prayer of the defendant in his ¡dea; and to the next succeeding term of the court brought this action. By the second section of our act for the limitation of actions, passed the 27th of March, 1713, it is provided, if judgment is given for the plaintiff, and the same is reversed by error, or a verdict passed for the plaintiff and judgment therein arrested, the plaintiff is [385] allowed a year, within which he may commence a new action, notwithstanding the time allowed for bringing the action in the first instance shall have elapsed. Our act, in this respect, is a transcript of the fourth section of the statute of limitations of James I.; in the construction of which it has been held, -where a writ is abated by the death of the plaintiff, or by her marriage, if a feme sole, the operation of the statute is prevented by the commencement of a new suit within a year, by reason of its coming within the principle, or the like reason, which induced the legislature to allow a year in cases of judgments reversed or arrested. See Kinsey v. Heywood, 1 Lord Raym. 434, per Treby, C. J.; Forbes v. Lord Middleton, Willes, 259, note (e); Matthew v. Phillips, 2 Salk. 424, 425; Angell on Limitations, 325-330 ; Huntington v. Brinkershoff, 10 Wend. 278 ; 3 Bing. N. C. 383. We are satisfied that the abatement of the first suit, by a plea of the defendant put in for that purpose, falls within the reason and equity 'of the act, which allows a year for bringing a new suit in cases of reversals and arrests of judgment, though not within the letter of it; and that the plaintiff is entitled to one year, upon the same principle, within which he or she may bring a second action for the same cause. The plaintiff below, therefore, in this case, by showing the prior action commenced by her, for the same cause, against the defendant alone, and the abatement of it by reason of his plea, took her case out of the act of limitations ; and this show's that the first, second, and third points submitted by the counsel of the defendant below to the court, for their instruction thereon to the jury, became wholly irrelevant and unnecessary to be decided by the court. It is self-evident that no new promise was or could be necessary to take the case out of the operation of the act of limitations, where its operation as a bar to the suit had been prevented by the commencement of a prior suit by the plaintiff, and the abatement thereof by the plea of the defendant. This disposes of the plaintiff in error’s third error, and show's that there is nothing in it. The first error is an exception to the testimony of Charles A. Bernilz, which showed that the claim of the plaintiff below was correct and just, according to the statement and admissions of Samuel R. Slaymaker, ’who, as the defendant alleged iri his plea in abatement, was a partner in the stage company. It cannot be questioned but a like admission from each one of the persons, alleged by the defendant below to be partners in the stage company, would have been admissible evidence, yet the admission of one only would be given in evidence at the same time ; and whether the admission of one given in evidence could after-wards be regarded as entitled to consideration in the cause, might depend altogether upon whether the like admissions of the other part [386] ners had been subsequently given in evidence. But we think the admissions of Samuel R. Slaymaker were admissible in this case against the defendant below, because he had declared upon record, by his plea in abatement, that Slaymaker was a partner with him in the stage company, against whom the claim was alleged to exist, and was actually made. The second error is an exception to the declarations of Thomas S. Downing being given in evidence, who was a son of the defendant below, and alleged to be his agent at the time he made the declaration, in the matter to which they related. The evidence showed that when the father was written to, on the subject of .the claim in suit here, the son was stating the receipt of the letter by his father, and showing that he was acquainted with its contents, and at the same time communicated what the father said in regard to it. It was also proved that the son had been known to transact business for his father, and to act as his agent in other matters. The evidence of his being agent for his father was clearly sufficient to make his communications and declarations, made in the course of his acting as his agent, admissible as evidence against the father. The fourth error is, that the court erred in answering the defendant’s sixth point. It is difficult to discover why such a point should have been submitted, as it does not seem to be raised by the evidence in the cause, and certainly could not have been the ground upon which the plaintiff claimed to recover from the defendant. Neither can I perceive that the answer given to it by the court could prejudice the defendant in the slightest degree, under any viewr -which the jury could take of the case. The fifth error is, that the court erred in answering the defendant’s seventh point, which was, that the promise of Thomas S. Dowming, if made at all, was made as the representative of Joseph M. Downing, and not of the company; and as the suit was against the company, and not against Joseph M. Downing alone, the plaintiff could not recover. To this point the court answered, that they thought the promise of Thomas S. Downing, acting as the agent and representative of the defendant, who has taken issue on the pleadings ’ in the case, warranted a verdict against the defendant. It is abundantly clear from the evidence, that the claim was presented to the defendant, from first to last, as a claim that existed against the company, and that he was only applied to as a member of the company to pay it. The son, his agent, also understood the thing in the same way, and hence they begged for time, in hopes that a claim which the company had made against the United States would be obtained, and enable them to settle the plaintiff’s in [387] this case. Any promise, therefore, made by the son, as the agent of his father, would, of course, be' considered as made on his behalf as a member of the company, and binding only on him as such; and being-sued in this case, as a member of the company, such promises might well be regarded as evidence for the plaintiff against the defendant, as a member of the company; and this seems to have been the opinion of the court below, as expressed in their answer. We therefore see no error in it. The sixth error is an exception to the answer given by the court to the defendant’s eighth point; which was, that the plaintiff’ could not recover on the declaration, there being no evidence to sustain it. The court, however, said, they thought there was evidence to sustain it, the force and credibility of which was to be judged of by the jury. It is not easy to discover the question that was intended to be raised by this point; but as the defendant speaks of this suit in his seventh point, as being against the company, we may presume that he meant by his eighth point, that there was no evidence given of such joint promise as was sufficient to bind each and every member of the company, in the same manner as if each had been served with the writ of summons, and been in court answering to the suit. Y/e, however, do not think that such evidence was necessary to be given to entitle the plaintiff below to recover against the defendant, who alone was answering to this suit, and where the judgment, if rendered against him, could not bind or affect the rights of the others, seeing they were not served with the summons, and had no opportunity afforded them of being heard, and in reality could not be considered parties to any judgment that might be given against the defendant. If the evidence, therefore, given showed that the defendant admitted the existence of the claim as against the company, and that as a member thereof he was liable for it, it was sufficient to warrant the jury in finding a verdict against him. That there was such evidence given, we think is abundantly clear, from which it appears that he -was made acquainted with the return of the claim, and the amount of it, and, indeed, furnished with a statement or copy of the account, which he kept without ever denying or attempting to dispute it. This was equivalent to an admission that it was correct, and sufficient to make him liable for it as a member of the company, in the present action, where he is the only one that can be affected by the judgment. The seventh error is, that the court, in answer to the defendant’s ninth point, instructed the jury that a full consideration was set forth in the plaintiff’s declaration for the promise there mentioned. We can perceive no error in this. The declaration, as directed to be amended, [388] unquestionably shows a good consideration for the promise of the company, and shows nothing more than what was given in evidence to the jury, and actually tried and determined by them. It was a trial on the merits of the claim against the defendant as a member of the company. The eighth error has been shown already to have nothing in it; noi would it have been right that the declaration should have stated a cause of action against the defendant individually, because he was sued as a member of the company, and the cause of action shown, ought, of course, to be against him as a member of the company. The judgment is therefore affirmed.