Cowhick v. Shingle

Clabk, Justice (after stating the facts): It is the settled construction of our Code of Civil Procedure that “where it appears upon the face of the petition “that' the cause of action accrued at such a period that under “the statute of limitations no action can be brought, the defendant may demur to the petition on the ground that the “petition does not state facts sufficient to constitute a cause “of action.” Sturgis et al. v. Burton et al., 8 Ohio St., 215. It is clear that more than five years elapsed between the date the cause of action accrued upon the note and the commencement of the suit, and hence the demurrer of the de — 91 — fendant Altman was properly sustained by the court below, unless the payment of the interest by the defendant Shingle on the 1st day of June, 1890, had the effect of suspending the running of the statute in favor of the defendant Altman. Briefly stated, the sole remaining question for determination is: Does a partial payment by one of two parties jointly and severally liable upon a promissory note suspend the running of the statute in favor of the other? Before proceeding to the consideration of our own statutes, so far as they bear upon this question, it may not be amiss to briefly look into the history of the law upon this subject. The first statute in our system of jurisprudence which placed limitations upon personal actions was Ch. 16 of the 21st of James I, enacted in 1623. In the construction of this statute, and of statutes enacted at an early day, by several of the States of the Union, which were substantially like it, there was great diversity of opinion upon the question we have presented here. The leading ease on this question in England is Whitcomb v. Whiting, Douglas 652, decided in 1781, where it was held by Lord Mansfield and his associates that “payment by one is payment for all, the one acting “virtually as agent for the rest; and, in the same manner, “an admission by one is an admission by all; and the law “raises the promise to pay, when the debt is admitted to be “due.” Willes, Justice, concurring in the views expressed by Lord Mansfield, further said: “The defendant has had the advantage of the partial payment, and, therefere must be bound “by it.” This case seems to be wholly opposed in principle to the case of Haslerig v. Bland, 2 Ventris, 151, decided many years before, but after the adoption of the statute of 21 James I. While the doctrine of Whitcomb v. Whiting was several times seriously questioned by eminent English judges, notably by Lord Ellenborough in Brandram v. Wharton, 1 Barn & Ald, 463, it became the generally accepted rule in England, and was such until Parliament interfered in 1828, and, adopting what is known as Lord Tenterden’s Act, de92 dared among other things that no joint contractor should be in any manner affected by any written acknowledgment, or promise made by their co-contractors,,thus limiting the effect of written acknowledgments or new promises to .the parties making them. This act, however, contained this proviso: “Provided, always, that nothing herein contained shall alter “or take away or lessen the- effect of any ■ payment of any “principal or interest made by- any person- whatsoever.” We cite this thus fully because it is urged upon us that this statute is in substance the same as our Sec. 2381, quoted in the statement, of facts hereto appended, and inasmuch as the English-coiirts after the adoption of the act gave the same effect to a partial payment by one of two or more joint obligors as was given in Whitcomb v. Whiting, that hence the cases so holding are authority for the proposition that our statute should be so construed .as to make a payment- by one obligor effective as to the others. I cannot assent to this contention because, considering, the state of -the law in. England at the time of the adoption of Lord Tenterden’s act, as declared by the courts there, it seems clear to -my mind that the effect of the. proviso in that, act was to leave the legal effect of a payment made by “any person whatsoever” just exactly what it had been, held by the courts to have been; in fact it might be very strongly .urged tha-t. the proviso was in effect a legislative affirmation of the rule previously established by the courts, and such in effect seems to'-have been the view taken by the court in Wyatt v. Hodson, 8 Bing; 309, and by Chief Justice Shaw in Sigourney v. Drury, 14 Pick, 387. By this act of Lord Tenterden, the effect of the decision in Whitcomb v. Whiting was limited solely to partial-payments, and its effect in that respect was entirely overthrown in 1856 by the act entitled-the Mercantile Law Amendment Act. - So that long before the Territory or State of Wyoming came into, existence, the doctrine of that celebrated case had met its death in the land of its birth, and as stated at pages 608 and 609 of Wood on Limitations: “The “judgment of the profession as well as of the people generally, as to the wisdom ■' of the doctrine, -is best evidenced — 93 — “by the circumstance that' it has been nearly obliterated “by legislative and judicial action.” In -the United States under statutes -substantially like the English statute the''doctriné of Whitcomb v. Whiting'met with great disfavor at an- early day and' was wholly -repudiated in several'well considered' cases; among them- may be mentioned as especially worthy1 of consideration: Bell v. Morrison, 1st Pet. (U. S. S. C.), 351; Exeter Bank v. Sullivan, 6th N. H., 125; Coleman v. Fobes, 22 Pa. St., 156; Levy v. Cadet, 17 S. & R., 126; Van Keuren v. Parmelee, 2 N. Y., 524; Shoemaker v. Benedict, 11 N. Y., 176; Yandes v. Le Favour, 2 Blackf., 371; Beloit v. Wayne, 7 Yerg., 534; Muse v. Donelson, 2 Hump., 166; Lowther v. Chappell, 8 Ala., 353; Succession of Voorhies, 21 La. Ann., 659; Evans v. Duberry, 1 Marsh (Ky.), 189; Steele v. Jennings Beatty, 1 McMull. (S. C.), 297, star pag’g. In- somé of the above’cases'the acknowledgment or partial 'payment relied upon to take the' cáse out :of the statute was made before the bár of' the statute’ had become complete; but in my judgment there is no distinction', in' principle- between the legal-effect óf acknowledgment. or payment made before or’after th'é bár of'the statute had attached; •• in either case-the legal e'ffeot'-thereo'f is to create''a néw cause of action. Muse v. Donelson, 2nd Humph., 169; Bell v. Morrison, 1st Pet., 351; Shoemaker v. Benedict, 11 N. Y., 176; Allen v. O’Donnell, 28 Fed. Rep., 17, at p. 25; Wheelock v. Doolittle, 18 Vt., 440, at p. 442; Willoughby v. Irish, 35 Minn., 63, at p. 69. ' In' the cááe of Coleman v. Fobes, 22 Pa.. St., 156, it-is. said: “We cannot but regard the case'of Whitcomb v. Whitting, which declared-that’a'-payment by one joint-debtor was “a new'promise by all as-being at the bottom of all the-contusion that "exists-in the decisions'in England and in this “country on-the subject of this statuté in it's relation to joint '“debtors:” And from the'review in that- casé of the English ■decisions'-it would'seem" that the doctrine had led-to inextricable confusion, and to-such'extreme views'-that the-stat — 94 — ute was in effect a nullity, as shown by the decision in Goddard and Goddard v. Ingram and Wartnaby, 3 Ad. & El., U. S., 839.- In this case the two defendants had been partners with one Shuttleworth; the partnership was dissolved in 1832, and upon the dissolution, was indebted to -the plaintiffs, bankers, in the sum of 2,000 pounds. In' 1839 James Goddard, one of the plaintiffs who was individually indebted to the old partnership on his single account in the sum of 35 pounds, drew his check upon his own bank for that sum and placed it to the credit of the partnership. A' day or two afterwards Shut-tleworth, who was hopelessly bankrupt, called at the bank and expressed himself satisfied with the transaction. This was held a sufficient payment to take the case out of the statutes, as to the two defendants; and, in the light of this case, it is not surprising that the Pennsylvania court should say: “To “carry out this principle of Whitcomb v. Whiting would “allow a debtor that is hopelessly bankrupt to bind others “by his new promise, and even to be hired to do it, and thus ‘Tar the example has led in England.” On the other hand, it is.true that in many States, especially the New England States, the doctrine of Whitcomb v. Whiting was upheld and under statutes similar to the English statute enforced. In Sigourney v. Drury, 14 Pick’g, 387, Chief Justice Shaw rendered an opinion sustaining the doctrine of Whitcomb v. WThiting, and which may well be considered the leading case upon that side of the question in the United States. Cox v. Bailey, 9 Ga., 467, is another strongly reasoned case in favor of the doctrine. The same rule was held to be the law in Rhode Island, Connecticut, Maine and other States, but it is, I think, a circumstance worthy of great consideration that within a few years after the rendition of the decisions sustaining this rule, the legislatures of nearly all the States so holding by legislative enactment declared that no joint debtor should be deprived of the benefit of the statute by reason of the fact of payment by his co-debtor. It must be admitted that at the time of the adoption of — 95 — section 21, Ch. 13, Compiled Laws of Wyoming 1876, to wit: December 11, 1873, in fact, at the time of the organization of the Territory of Wyoming in 1868, the rule that one joint debtor was affected by the partial payment of his co-debtor in such way as to deprive him (the formér) of the benefit of the statute, prevailed in only a few of the States of the Union, to wit: Connecticut, New Jersey, Rhode Island, Delaware, Georgia, Oregon, North Carolina, Missouri, and perhaps at that date Minnesota,, and one or two other States. In all the other States and in England as well, the rule had been entirely overthrown, either by judicial decision or by legislative enactment. This fact is in my mind a strong circumstance, as evidencing the judgment of the profession and of the people as well, concerning the wisdom and propriety of the rule here contended for by the plaintiff, and is entitled to consideration in attempting to properly construe our statute upon the subject, because when we come to construe our statute it is a fair presumption that our legislature when engaged in legislating upon a subject so generally acted upon in other jurisdictions did have some regard for the general state of the law upon that subject, and we may very properly bear this in mind when we undertake to ascertain what was the legislative intention with respect to' the statute. It is urged upon us, that “when a statute is in general terms it is subject to the principles of the common law, “and is to receive such construction as is agreeable to that “law in cases of the same nature.” And then it is said “that “the common law rule is clearly laid down in Whitcomb v. “Whiting.” As a rule the term “common law” means both the common law of England as opposed to statute or written law, and the statutes passed before the emigration of the first settlers of America; Patterson v. Winn., 5 Pet., 241. Commonwealth v. Leach, 1 Mass., 61. And applying this definition to the matter in hand, I am unable to. perceive that there is any “common law” rule upon the subject. At common law there was no limitation as to time upon the right to bring a personal action. Such limitations are and always have been pure creatures of the statute, and the rule — 96 — contended for is a rule which grew up and developed in the construction of the statute of 21st James I, and in no other way. It was first announced in 1781 by Lord Mansfield in Whitcomb v. Whiting, and, while any statement of the law made by that great judge is entitled to great weight and respect, his declarations even as to the common law are simply persuasive authority. This brings us now to the consideration of our own statute, and before reviewing the authorities construing this and similar statutes, I will'examine the statute independently, of them. It is'-quite clear that under the statute no written acknowledgment or new promise howsoever solemnly-executed or made by one of two . co-debtors could .in any. measure suspend tire.running of the statute, as to the.other,'and this •would :be' so whether the acknowledgment. or .promise was rnáde- before; or -after -the statutory bar. had. attached. . This being so;' it would' seem that inasmuch as the law.does not permit one"eo-debtor:by his express promise, or-acknowledgment-to bind the other,'it would logically follow.that-he could-not by -an act which .is simply, in legal, effect an acknowledgment from which the law implies .a .promise, .bind him. I am-unable to.'.escape-this conclusion, and it seems to me to be -abundantly justified by the. authorities. .In; 1866 the 2.4th section of the Code of Ohio was identical with Sec. 21, Ch. 13,--Compiled-■ Laws, óf Wyo. 1876; thereafter the legislature of Ohio adopted a’new code,. Sec.-4992 ■of which is identical with our Sec. 2381, R. S. of Wyo. 1887. These sections are set forth in the statement of facts preceding this opinion. In my judgment the two sections are ■in’ substance-the same; -there Is-no sort of difference, in their effect. . In Marienthal v. Mosler, 16 Ohio St., 570, the Supreme Court of Ohio;- in construing-the 24th section, of .their 'code, used- this language: “By:'comparing--this-, section'.with the--, one. for. which “it is'substituted in the limitation áót of .1831,- and judicial “constructions given to the act.-of-.-21 James,-it is apparent -“that'the 'legislature did not Intend■ to enlarge the facili — 97 — “ties for taking cases out of the statutory bar. Before this, “can now be' effected by an acknowledgment of an existing-“debt or a promise to pay the same, it ‘must be in writing, “‘signed by the party to' be' charged thereby.’ Wo change “is made in the effect of a .part payment of á debt. It will: “be seen, however, that the same effect is given to such' “part payment as is given to a written promise signed by the' “party to be charged thereby. It would seem therefore from “analogy, that the payment must be made by the party to be “affected thereby, or by an agent authorized for that express “purpose. In the contemplation .of the statute, the part “payment of a debt is regarded as. evidence of a willingness “and obligation to pay the residue, as conclusive as would “be a personal written promise to that effect. It could not “then have been intended to give this effect to ..payments “other than those made by the party himself or under his “immediate direction. Surely nothing short of this would “warrant the' assumption of a willingness to pay equal to “his written promise to that effect.” ' In Hance v. Hair, 25 Ohio St., 349, it was held under the same section that “a partial payment on a joint and several “promissory note by one of the several makers will not prevent “the running of the statute of limitations as to the other “makers.” And the ease of Marienthal v. Mosler, supra, was expressly affirmed. . ' In Kerper v. Wood, 48 Ohio St., 613, the statute in existence and relied upon was sec. 4992, R. S. Ohio, identical with our section 2381j R. S. Wyo. 1887. The court quoted from the decision's in Marienthal v. Mosler, supra, and Hance v. Hair, supra, and say at page 621: “These decisions give “emphasis to the reason and language of the statute. A payment, or acknowledgment or a promise in writing will not “avail to take a case out of the statutory bar unless made by “the party to be charged thereby, or by an agent authorized for that express purpose.” : It is quite apparent from these decisions from Ohio that the supreme court of that State regarded the .two sections as the-same in substance, and in view Of the fact that we — 98 — adopted our statute from that State these- decisions arc entitled at least to more than ordinary weight in the construction of our statute. In Commonwealth v. Hartnett, 3 Gray, at page 451, it is said that. “it is common learning that the adjudged construction of the terms of a statute is enacted as well as the “terms themselves, when an act- which has been passed by “the legislature .of one State or .country is- afterwards' passed “by the legislature of another.” In Steele v. Souder, 20 Kans., 39, Mr. , Justice Brewer delivering the opinion of. the court, in construing a. statute identical'with-Sec. 21, Oh. 13, Compiled Laws.of. Wyo. 1876¿ uses this language: . .. “The language may indeed be open to three constructions: “One, that the mere-fact of payment, whether by a party to “the instrument or not keeps it - alive as to. all originally “liable on it:- another, that payment by one party keeps it “alive as to all: and, third that payment,- like acknowledgment or promise, keeps it alive only as to.the party paying. “It seems to us that the latter is the true construction. Ho “valid- reason exists -why -payment should he- more potent 'Than acknowledgment or promise. ■ Indeed, • payment- was “treated by the courts as simply-an. evidence ,of acknowledgment. Such construction makes -the various provisions of '“this 'section -not only harmonious with each other, hut with “the-general provisions of the statutes ma-king-nach -party to “an instrument severally liable -thereon. ■ Severally liable, “each should be severally protected.- • We.conclude, -then, that “payment suspends the running- of the statute- only as against “the party- making the payment.” . I think there is no room to doubt'-the correctness-of the learned Justice^ views with respect to the. effect of the payment. It is. 'certain-that Lord’ Mansfield. made no ■ distinction between the legal efféct:of a payment and- -acknowledgment; and such is the generally accepted- opinion. • It. is true that Tindall, C.-J.,'in Wyatt v. Hodson, 8 Bing,, 309, at-tempted -to -draw a distinction' between . a-payment and. “an ordinary acknowledgment;”*.but however much, force.there — 99 — may be in bis remarks wben applied to an ordinary oral acknowledgment, I am unable to perceive any in cases where the acknowledgment or new promise is required to be in writing and subscribed by. the party. In Nebraska, the statute was as follows: • “See. 22. In any case founded on contract- when, -any “part of the principal or interest shall have' been paid,' or “an acknowledgment of am existing liability, debt or claim “or any promise to pay the same, shall have been made -in “writing, an action may be- brought in such case within the “period prescribed for.the-same after such payment, acknowledgment or promise.” In Mayberry, v. Willoughby, 5 Nebr., 369, it was held, that part payment by one of two joint debtors does not take the ease out of. the statute--as to the other.- - • In Minnesota, thé statute was: •: “Sec. 24. No acknowledgment or promise .is; sufficient “evidence of a new or continuing contract by which to take “the case out .of the operation .of this chapter unless-the “same is contained in some writing signed by the party-to “be charged thereby;- but this'section, shall not alter the “effect of any payment of principal .or .interest.” ■ ' . • , In Willoughby v. Irish, 35 Minn., 63, it was held: in. a well considered ease’that “A partial payment upon a promissory- note by one of the “joint and several makers thereof and indorsed .-upon it.-be“fore the note -is barred -by. the statute of limitations, - and “within six years before suit is brought is inoperative to present the'running of the statute-as to the others.’’ Syllabus; In New. York, the statute is identical w-ith ■; that; of Minnesota just quoted. .' ■ ’ . In McMullen v. Rafferty, 89 N. Y., 456, it'..was,-held that payments made by one of two'joint and -several makers of a note did not prevent the running of the statute as' to the other,, although-the. partial -pay-ments .were - made-before-the statutory bar had attached. , .. The following cases- also .hold that- payment, by 'one of — 100 — two joint obligors does not suspend the running of the statute as to the others: Bush v. Stowell, 71 Pa. St., 208, at p. 212; Kallmbach v. Dickinson, 100 Ill., 427; In re Sanders Est., 24 N. Y. Sup., 317; Littlefield v. Dingwall, 39 N. W. Rep., 38; Tate v. Clements, 16 Fla., 340; Davis v. Mann, 43 Ill. App., 302. See also Vol. 1, Part 11, Smith’s Leading Cases, page 857, giving note to Whitcomb v. Whiting; Angelí on Limitations, 6th Ed., page 269, and note at page 281, et seq.; 3rd Parsons on Conts., 6th Ed., page 79, et seq.; Wood on Limitations, p. 605; United States v. Wilder, 13 Wall., 254; 3rd Kent’s Comm., 50. We have examined with care the cases upon the other side of this question, especially Sigourney v. Drury, 14 Pick., 387; Quimby v. Putnam, 28 Me., 419; Hewlitt v. Schenck, 82 N. C., 234; Moore v. Goodwin, 109 N. C., 218; Moore v. Beaman, 111 N. C., 328; Merritt v. Day, 28 N. J. L., 32; Cox v. Bailey, 9 Ga., 470; McClurg v. Howard, 45 Mo., 365; Perkins v. Barstow, 6 R. I., 505; Woodsochet Ins. v. Ballon, 1 L. R. A. (Rh. I.); 555. In this last cited case from 1 L. R. A., the Supreme Court of Rhode Island, at page 560, after reviewing the cases in that State, says: “The cases are doubtless at variance with “the rule now generally prevailing in the United States;” and hold that the doctrine is too firmly established in 'that State to be altered except by a statute. In the case of Hunter v. Robertson et al., 30 Ga., 479, the court, while holding to the rule declared in Cox v. Bailey, 9 Ga., 467, as to the effect of a payment by one of two joint obligors, refuse to extend the rule so as to affect indorsers or sureties, and express grave doubts as to the correctness of the rule as to joint obligors, and use this language: “But again: If the principle is wrong when applied “to joint makers — and there is no doubt in my mind that it “is — shall we extend it to an indorser on the same fallacious “reasons?” In the ease of McClurg v. Howard, 45 Mo., 365, Judge Bliss, delivering the opinion of the court, and referring to — 101 — the ease of Shoemaker v. Benedict, 11 N. Y., 176, says: “I “confess it would be very difficult to reply to or resist tbe “force of tbe reasoning of Judge Allen, who gave tbe opinion of a majority of tbe court in that case; and were tbe “question a new one in Missouri, I would favor tbe application of its doctrine to tbe present case, but tbe question was “expressly decided the other way .by this court in Craig v. “Calloway, 12 Mo., 94, and tbe decision was in accordance “with tbe authorities at that time.” And hence tbe question was considered as not an open one in Missouri. To tbe same effect is Campbell v. Brown, 86 N. C., 376, at pp. 380 and 382. And thus upon examination of tbe authorities we find not only that tbe principle here contended for by tbe plaintiff is denied by tbe overwhelming weight of authority, but also that in some of the States where it is recognized as tbe law the courts continue to sustain it solely for tbe reason that it has been so decided in earlier cases. Tbe case of Cross v. Allen, 141 U. S., 528, is strongly urged upon us, as being a case which in effect denies tbe doctrine of Bell v. Morrison, supra. There are some expressions in tbe case which give some foundation to the contention; but an examination of tbe ease leads me to tbe conclusion that it was correctly decided for reasons which in no wise conflict with anything said in Bell v. Morrison. Tbe case arose in tbe State of Oregon, and tbe question was whether tbe payment by a principal suspended the running' of tbe statute as to a surety. Of course this called for a construction of tbe statute of Oregon. The statute in force was peculiar to that State and Minnesota. In each of those States tbe statute had been considered by their Supreme Courts and held to mean that payment by any party upon an existing, contract after it becomes due had the effect of causing the statute to run as to all the parties, only from the date of the last pajunent. Whittaker v. Rice, 9 Minn., 14; Partlow v. Singer et al., 2 Ore., 307; Sutherlin v. Roberts, 4 Ore., 378. — 102 — Id. these, eases the-peculiarities of . the statute axe pointed out' and commented upon. We have.hereinbefore-:quoted the present statute’-of Minnesota.. A comparison of that statute with the one existing at the time of the decision in 9 Minn., 14, will show the reasons .for the different.rulings.in that -State. See Willoughby v. Irish, 35 Minn., 63. Upon the whole case. I am of the opinion: that the true construction of Our statute, See. 2381, R. -S. 1887, is. that -given by the Supreme Court of Ohio in Kerper v. Wood, 48 Ohio St., at page 621, viz.: “A pay“ment, an: acknowledgment or a..promise-in writing will not “avail to take a case out of the statutory bar unless made by “a party to be charged ■ thereby, ornan agent authorized for “that express purpose,” and.that -the:-judgment.'of the District .Court- of-the County of..Laramie should be in all respects affirmed. . G-roesbeck, C. J., and Conaway,; J., concur.