Bradford v. Spyker's Adm'r

WALKER, J. By the act of 1802, six years is made the period of limitation to actions of account. — Clay’s Bigest, 326, § 78. Courts of law have, through the action of account, concurrent jurisdiction with courts of chancery over a partnership account, though the remedy has fallen into disuse. — Atwater v. Fowler, 1 Edw. Ch. R. 417; Collyer on Partnership, book III, § 4, page 372, § 298, note 1; Duncan v. Lyon, 3 John. Ch. 360. Where the jurisdiction of the chancery court is concurrent with that of a court of law, the statute of limitations governing the legal action applies. — Crocker v. Clements, 23 Ala. 296; Askew v. Hooper, 28 Ala. 634; Johnson v. Johnson, 5 Ala. 90; Gunn v. Brantley, 21 Ala. 633; Maury v. Mason, 8 Porter, 227; Collyer on Part. 339, § 374; 2 Dan. Ch. Pl. & Pr. 730-731; Patterson v. Brown, 6 Mon. 10. The statute of limitations of six years is, therefore, applicable to a suit in chancery, for the settlement of a partnership. The dissolution of the partnership, and the division of the stock, occurred at least twelve years before the commencement of the suit, To avoid the conclusion that the statute of limitations has during that period perfected a bar, two positions are taken : 1st, that by an assertion contained in the answer, that the defendant had always been, and was still, ready and willing to account for certain debts, the bar of the statute was removed; and 2d, that items of debit and credit, in the account exhibited with the answer, defeat the plea of the statute of limitations. — 141 — That part of the answer, in which the offer to account is found, is in the following words: “ He admits, that he has collected some money on notes and accounts due the firm, since August, 1835, and also since January, 1836, and has disposed of some real estate belonging to said firm ; but he is now, and at all times has been, ready and willing to account for the same, and here submits a full statement of all such notes, accounts, and sales of land, which have come to his possession, of which he has made collection, and of which no account has been rendered, as set forth in exhibit A, which he again asks may be taken as a part of his answer.” “ Exhibit A ” contains a charge j against the respondent for $80 collected after the com-' mencement of the suit, and a credit of $309 35 for money \ paid out after the commencement of the suit. There is no item of the account submitted within- six years next before the institution of the suit, and the answer asserts that, upon an accounting, there will be a balance in favor of the defendant. [2.] The declaration by the respondent, in his answer, of his past and existing willingness to account for the items, mentioned in his exhibit, may be taken -as including the assertion of the existence of such readiness and willingness before the commencement of the suit, as well as at the time of answering. "We do not doubt, that if an answer contains that which is requisite to defeat a plea which is incorporated in it, the plea would fail, because it would not be regarded as well pleaded. — Andrews and Wife v. Huckabee, 30 Ala. 143; Goodwin v. McGehee, 15 Ala. 239; Ferns v. Burton, 1 Verm. 439. But a mere expression of readiness and willingness “to account,” especially when it is accompanied by the assertion that the balance upon the accounting would be in the party’s favor, would not, if made before the commencement of the suit, remove the bar. It can have no greater effect, when made after the suit, and incorporated in the answer. To revive a cause of action barred by the statute, it is necessary that there should be an express or implied promise to pay; and a promise will not be implied, unless there is an acknowledgment of a liability and willingness to pay — 142 — the demand. — Evans v. Carey, 29 Ala. 99; Townes & Nooe v. Ferguson, 20 Ala. 147; Ross v. Ross, ib. 105; Childress v. Crawford, 1 Ala. 482; Pool v. Relf, 23 ib. 701. It is not sufficient that there should be a willingness to account. An account, it is true, is one object of the suit; but it is the mere means of ascertaining the amount of the balance, which the complainant claims to exist in his favor. This balance constitutes the demand or debt which the complainant seeks to recover, an acknowledgment of a liability and willingness to pay which is necessary to authorize the inference of a promise. The entire answer is to be taken together, in determining whether there is a promise. Looking through the answer, we find what the complainant insists is an acknowledgment sufficient to avoid the statutory bar accompanied by a denial that the defendant owes any thing to the complainant, and asserting that the indebtedness is in his favor. If the expression in reference to accounting would be sufficient, standing alone, to defeat the plea, the other expressions would qualify and explain it, and show that the defendant did not intend to make any promise to pay. The principle is, that a promise cannot be inferred from expressions which are coupled with words negativing the intention to make such promise. — Perley v. Little, 3 Greenl. 97-102; Purdy v. Austin, 3 Wendell, 190; Sanders v. Gelston, 15 Johns. 521; Angell on Limitations, 232. [3.] The next point is, whether the occurrence of two items, one of debit, and one of credit, after the commencement of the suit, would revive the cause of action. Although there are conflicting authorities upon the subject, we think that accounts between partners, inter sese, do not come within the exception to the statute in reference to the trade of merchandise between merchant and merchant. Partners engaged in merchandising do not deal with each other as merchants, but as one merchant the partnership made up by the aggregation of individuals deals with others. — Patterson v. Brown, 6 Monroe, 11; Coalter v. Coalter, 1 Rob. (Va.) R. 79; Spring v. Gray, 6 Mason, 503; S. C., 6 Peters, 151; Codman v. Rogers, 10 Pick. — 143 — 112. Bat, notwithstanding the accounts between partners do not come within the exception applying to the trade of merchandise between merchant and merchant, their accounts are mutual accounts, unless the items are all on one side. "Where there are mutual accounts between two persons, whether merchants or not, and there is an item within the period of limitation, the whole account will be taken out of the statute. — Wilson v. Calvert, 18 Ala. 274; Todd v. Todd, 15 Ala. 743. The same principle would apply, where, after dissolution, both partners participate in the close of its affairs, and there are consequently debits and credits on both sides. — Tatum v. Williams, 3 Hare, 347, (25 E. Ch. 346;) Ault v. Goodrich, 4 Russ. 430, (4 Eng. Ch. 430;) Coster v. Murray, 5 Johns. Ch. 522; S. C., 20 Johns. 576; Spring v. Gray, supra; Barber v. Barber, 18 Vesey, 286; Atwater v. Fowler, 1 Ed. Ch. 417; Codman v. Roger’s, supra; McNair v. Ragland, 3 Mur. (N. C.) 139; Mandeville v. Wilson, 5 Cranch, 16. [4.] This doctrine, that items within the period of limitation will avoid the bar, is put by Lord Kenyon, in the decision of Catling v. Skoulding, 6 Term R. 180, (upon which case our decisions of Todd v. Todd, and Wilson v. Calvert, supra, are based,) on the ground that a promise may be implied. Therefore, the question whether the occurrence of items in the account after the commencement of the suit will revive the cause of action, is identical with the question, whether an express promise after the commencement of the suit will have that effect. Thus the case is narrowed down to this point: Will a promise after suit brought constitute a good reply to the plea in the pending suit ? In Yea v. Fouraker, 2 Burr. 1099, a case decided in 1760, it is said, without the assignment of a reason, “ that an acknowledgment of a debt after the commencement of the action takes it out of the statute of limitations.” The same doctrine is asserted, arguendo, in Thornton v. Illingworth, 2 B. & C. 824, (9 E. C. L. 256 ;) and it is placed upon the ground, that the statute proceeds upon the supposition of payment. In the case of Little v. — 144 — Blount, 9 Pick., Thornton v. Illingworth is quoted from in argument without any expression of approval or disapproval. In Morris v. Vanderen, 1 Dallas, 64, it is incidentally remarked, that there was one case in the books, where it was held, that an acknowledgment of a debt after suit takes it out* of the statute. In Sluby v. Champlin, 4 Johns. 461, an acknowledgment made at-the time of the defendant’s arrest was held sufficient 'to remove the bar. . In the head-note to Danforth v. Culver, 11 Johns. 146, it is said, that a promise after the commencement of the suit is sufficient; but the opinion does not touch this point. In Love v. Hackett, 6 Geo. 486, there is a remark not necessary to the decision of the case, that a promise after the commencement of the suit would be a sufficient reply to the plea. Two'theories of the statute of limitations have been put forth. One is, that the statute merely creates a presumption of payment. The consequence is, that, under this theory, the statute became rather a rule of evidence, and any evidence would prevent its operation upon the case, which showed that the debt was due and unpaid when the suit was commenced. Admissions and acknowledgments occurring at any time, whether before or after the suit, would, of course, be adequate, under this theory, to take the case out of the statute. Another theory is, that the statute takes away and extinguishes the remedy; and that a promise, express or implied, is necessary to the maintenance of the action; and that it is the new promise which gives the remedy, which the statute took away. Upon this theory, the action could not be upheld by a promise made after suit; and, in our opinion, this is the correct exposition of the principle upon which the statute proceeds, and the decisions which admit the sufficiency of a promisehubsequent to revive the cause of action are wrong. In 1827, long after the decision in Yea v. Fouraker, supra, and three years after the decision in Thornton v. Illingsworth, supra, the case of Tanner v. Smart was decided. — 6 B. & G. 603, (13 E. C. L. 273.) In that case, the proposition- that the statute is founded on — 145 — the presumption of payment was repudiated, and with it the idea that any acknowledgment sufficient to rebut that presumption would avoid the bar. Yea v. Fouraker heads a long list of cases, cited in that case, as giving an incorrect exposition of the principle upon which the statute operates. In the still later case of Bateman v. Pindar, 3 A. & E. (N. S.) 57, (43 E. C. L. 873,) the decision in Yea v. Fouraker is expressly overruled, and the dictum in Thornton v. Illingworth is declared to have been wrong. The judges said, that those two cases were right, if the statute takes effect upon the ground that, after a certain time, it shall be presumed that the debt has been discharged; for, if that be so, an acknowledgment at any time would rebut that presumption ; but that in Tanner v. Smart the earlier cases were revised, and the doctrine as to presumption of payment repudiated, and that since that decision an acknowledgment of payment after suit would not prevent the operation of the statute. In New York, where the decision in Sluby v. Champlin, supra, was made, the courts adhere to the idea, now exploded in England, that the statute is founded upon the presumption of payment. — See Phillips v. Peters, 21 Barbour, 351. The decisions of that State would, therefore, be no authority where the opposite theory of the statute was adopted. The incidental remark made in Morris v. Vanderen refers to, but does not in any way adopt, the case which asserts that a promise after suit would defeat the bar. Nor does the decision in Little v. Blount, supra, adopt that doctrine; on the contrary, it maintains the opposite. It says, “The new promise alone gave the remedy. There was a sufficient consideration for this promise. A debt barred by the statute of limitations is a gpod consideration for an express promise. But it is not necessary to declare on the new promise. According to the established rules of pleading, the plaintiff had a right to declare on the original promise; but, when the statute of limitations was pleaded, he might reply the new promise. When the pleadings assume this shape, the original promise is apparently the cause of action, but it is the new promise alone that gives it vital — 146 — ity; and that substantially is the cause of action.” The remark in the Georgia case of Love v. Hackett, supra, seems to have been made upon the authority of Yea v. Fouraker, and Danforth v. Culver, without observing that the former was overruled, and the latter incorrectly represented in the head-note. The court of appeals of South Carolina maintain, in an able and conclusive argument, in Reigne v. Desportes, Dudley’s L. & E. 118, that the old debt is nothing more than the consideration of the new promise, and that this new contract is the cause of action. The same court, in the case of the Wingaw Indigo Society v. Kidd, Dudley’s L. & Eq. 115, decide, that an action brought on a note barred by the statute of limitations cannot be sustained by evidence of a promise to pay made after the action was commenced. The court, in the decision, used the following language: “According to the principles of the case I have cited,” (Reigne v. Desportes, supra,) “ to entitle the plaintiff to recover, it was not necessary to declare on the new promise. Still, however, the plaintiffs cannot recover on the proof; for, although they are not required to declare on the new promise, yet they are required to show a cause of action when the writ bears date. This could not be done by proof of a promise made subsequently. Such proof, in strictness, was inadmissible; but, when not objected to, and received as in this case, it would only show that, at the commencement of the plaintiff’s action, no cause of the action existed. To permit a recovery on such proof, would be about as reasonable as to permit a recovery on a note not due when the plaintiff's action was commenced.” I In the case of Bell v. Morrison, 1 Peters, 351, which is a controlling decision in most of the American courts, the statute was regarded as extinguishing the remedy; and it was held, that the recovery must be upon the new promise ; and that the action is maintainable only by virtue of the new pronnse. That decision was declared to be a correct exposition of the law by this court, in Crawford v. Childress, 1 Ala. 482, and has ever since been adhered to. In Crawford v. Childress, this court said : “ The statute — 147 — of limitations is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands, after the true state of tbe transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. That there are authorities, which assert that the statute is founded in presumption of payment, cannot be denied; but the opposite authorities are sustained by the current of decisions at this day, as more consonant to legal rules.” Again, the uniform decision in this State, that an express or implied promise is necessary to prevent the operation of the statute, is irreconcilable with the idea, that the statute is founded in mere presumption of payment, or is a rule of evidence which may be rebutted by admissions made after the suit is brought. The requisition that there must be a promise is only consistent with the supposition that the right of action is gone — that the remedy is lost, and that the right of action exists only by virtue of the new promise. It is, furthermore, only upon that supposition that our decision in Bumgardner v. Taylor, 28 Ala. 687, can be vindicated. The decision in that case, which is supported by the Pennsylvania decision of Haydock v. Tracy, 3 W. & S. 507, is, that a promise made on Sunday will not revive the cause of action. Neither the law of this State, nor that of Pennsylvania, would exclude evidence of admissions because they were made on Sunday. Those decisions rest upon the idea, that the new promise is a contract, based upon the old promise as its consideration, and that it is the real foundation of the action. The language of the statute of limitations is, that the actions “ shall be commenced within six years after the cause of action accrued, and not after.” — Clay’s Dig. 326, § 78. The palpable effect of this language is, that when the defense is made, no action upon the original promise can be maintained, after the expiration of the prescribed period. If, then, an action can be had, it must be upon the new promise. The true and legitimate construction of the statute affords, therefore, a strong argument in — 148 — support of the position which this court has heretofore occupied upon this question. We are impelled by the authorities cited, and the reasoning adduced, to the conclusion, that the new promise is the real and true cause of action, and that it is upon it that the recovery must be had. W e could not attain a different conclusion, without a manifest departure from the established judicial policy of this State, as exhibited in repeated decisions of this court. From this conclusion a decision fatal to the suit, upon the plea of the statute of limitations, is inevitable. For it is a principle, to which there is no exception now remembered, that there must be a complete cause of action at the commencement of the suit. A plausible argument against our conclusion has been drawn from the practice of declaring on the old promise. The reply to this is, that the declaring upon the original promise is an anomaly in the law, having its sanction rather in practice, than in principle; and that, as was remarked by C. J. Best, “ the new promise ought, in strictness, to be declared on; but the practice is inveterate the other way, and we cannot get over it.” — Upton v. Else, 12 Moore, 303, (22 E. C. L. 451.) Although the new promise is brought forward in the declaration, yet, (as was said by this court in Crawford v. Childress, supra,) “ It is .considered as one of the promises laid in the declaration, and one of the causes of action which the declaration states.” We need not consider the question, whether a subsequent promise to the representative could be replied to a suit upon promises by the deceased. Upon that question the authorities are conflicting, and it does not arise in this case. — Angelí on Limitations, 316, § 5. It is not contended, and we do not find, that the matters averred in the amended bill, by way of replication to the plea of the statute of limitations, are sustained by proof, farther than that which we have already noticed. It is, therefore, not necessary for us to notice them in this opinion. It is due to the chancellor who decided the case below to state, that the fact does not seem to have been called — 149 — to Ills attention, that the matter relied upon to take the case out of the statute occurred after the commencement of the suit. The decree of the court below must be reversed, and a decree here rendered, dismissing the complainant’s bill; and the complainant must pay the costs of the court below, and of this court.