Turner v. Ellicott

Eccleston, J., delivered the opinion of this court. The record contains five bills of exceptions. Numbers one and three were taken by the appellee, and numbers two, four and six by the appellants, who were defendants below. Those of the appellants present the questions which we now have to decide; and we begin with the prayer of the defendants, contained in their first exception, which was refused by the court. Its language is: " If the jury believe from the evidence that the plaintiff, prior to the first of June 1849, handed an account to the witness, Tongue, against the estate of John Peterson, and that said account was passed by the orphans court of Calvert county, and then presented by said Tongue to the defendants, or either of them; and if they further find that — 60 — when so exhibited thé said account was disputed and rejected by the defendants, or either of them, then the claim of the plaintiff on said account is barred, and cannot be recovered in this action, unless the jury find that this suit was brought within nine months after said rejection.” The plaintiff insists that the instruction was rightfully refused, because it does not submit to be found by the jury whether Tongue, as the agent of the plaintiff, was authorised to present the claim to the defeirdants. It is very certain that if there was no such authority the claim was not barred by the rejection of it, even if every other fact or circumstance enumerated in the prayer should be found or admitted; and, consequently, had the instruction been given the court would, necessarily, have assumed the existence of such an authority in the agent, instead of leaving the juiy to decide whether there was sufficient proof of its existence. And there is no principle better established than that which denies to the court the right of assuming any fact, in aid of a prayer, when the onus of proving such fact rests upon the party asking the instruction, no matter how strong and convincing his proof on the subject may be. It is scarcely necessary to sustain this position by authorities; we will however refer to 6 Gill, 95, 96. 7 G. & J., 108. 4 Md. Rep., 252, 253. In support of the prayer the appellants’ counsel referred to the case of Whiteford vs. Burckmyer & Adams, 1 Gill, 143, where it is said: “We hold it to be the privilege of a party to raise any question of law arising out of the facts of the case, and to demand the opinion, of the court distinctly upon it. If the opposite party believes that other facts not embraced in the hypothesis assumed, are properly calculated to justify an application for other and different instructions, he has the equal privilege of asking an opinion on the additional facts, but not the privilege of controling and modifying the hypothesis of his antagonist.” The principle here announced, it is said, fully sustains the correctness of the present prayer, notwithstanding its omission in reference to tire agent’s authority, because the appellee had the privilege of submitting an instruction on that subject, had he seen proper to do so. — 61 — The prayer before the court in 1 Gill, did not contain only a portion of the facts on which testimony had been offered, and ask an instruction that if the jury believed those facts the claim of the plaintiff was barred, or he could not recover; but it submitted a proposition in regard to the obligation on the plaintiff to prove a demand of the bill, that acceptance had been refused, and proper notice had been given to the defendant. The prayer contained, within itself, a correct legal principle. At all events the court so considered it. For they say, on page 144: “ It is not denied that it contained the law of the case, correctly asserting that notice must be proved as therein stated, and that the burthen of proof was upon the plaintiff in the cause. The assertion of this proposition was of no sort of importance to the appellant, unless he could satisfy the jury that the plaintiff below had failed to exhibit the proof which the court declared it to be necessaiy for him to produce. He thereby virtually denied the existence of such proof.” We cannot imagine the court ever intended to advance the doctrine that a party may select a portion of the facts in reference to which proof has been offered, and obtain from the court an instruction to the jury, that if they believe the facts so selected to be true, then the plaintiff is not entitled to recover, when those facts, of themselves, are not sufficient to authorise such a conclusion, but to do so they must be aided by some circumstance not presented by the prayer. Whenever a prayer undertakes to set forth facts as the basis of a legal proposition, the facts referred to must be sufficient to warrant the instruction asked for, without any extraneous aid. The following is the prayer contained in the defendants’ second bill of exceptions: “If the jury find that the testator, John Peterson, did, within three years before this suit, acknowledge that he owed five hundred dollars to the plaintiff for the support and clothing of the testator’s grandson, Richard H. Iglehart, and also a large sum for the education and support of his granddaughter, Ann Iglehart, but mentioned no specific amount of indebtedness on account of said Ann Iglehart, then the plaintiff cannot rely upon such acknowledgment as sufficient to remove the bar of the statute of limitations beyond — 62 — the amount of said five hundred dollars for the support and clothing of said Richard H. Iglehart, and nominal damages for the education and support of said Ann Iglehart.” The appellee says the court were right in rejecting this prayer, because it denies his right to recover, more than nominal damages, for his claim on account of Ann Iglehart, notwithstanding the acknowledgment of the testator within three years before the institution of the suit; whilst the appellant affirms the correctness of the prayer in reducing the plaintiff’s claim, in regard to Ann, to only nominal damages, because the testator’s acknowledgment, in that respect, mentioned no specific amount, and the alleged claim was nothing more than an open account. There are few, if any subjects, which have produced more controversy, or a greater number of conflicting adjudications, than questions arising under statutes of limitations. Without therefore undertaking the laborious and useless task of attempting to reconcile the contradictory decisions on the subject, we design to examine our own, and follow them. These, we think, justify the conclusion, that such an acknowledgment as the present, in reference to such a claim, removes the bar of the statute, leaving the plaintiff with the right and under the same obligation to establish his claim, by just the same kind of proof which would have been necessary if the plea of limitations had never been interposed. And why should it not be so, when it has long been settled that the statute does not extinguish the debt, but only bars the remedy, and that an acknowledgment by the defendant of the debt, or a promise to pay within the time prescribed, is sufficient to revive the action? Oliver vs. Gray, 1 H. & G., 216. If the debtor thinks proper to admit his indebtedness without limiting or restricting the amount, it would seem to be right that the plaintiff should be allowed to show the extent of-his claim, by legal proof. And we understand this principle to be recognized in the eighth rule in Oliver vs. Gray, which declares: “An admission that the sum claimed has not been paid, is not sufficient without some further admission, or other proof, that the debt once existed.” — 63 — Even if this rule may not in express terms refer to a case of an unliquidated or uncertain amount, nevertheless it clearly concedes that an admission, which, per se, is insufficient to remove the bar, may be made available for that purpose, by other proof adduced in aid of the admission. And if so in some respects, why may it not be so in reference to the extent of the indebtedness. And in Guy vs. Tams, 6 Gill, 87, the court say: “ To remove the bar of the statute by a subsequent promise to pay, it is not necessary that the creditor, at the time of such promise, should exhibit the evidence of his claim, or state (.he precise nature or amount thereof. These are facts to be found by the jury, who try the issues joined between the parties in the suit instituted for the recovery of the debt.” Here is a most explicit declaration that when a promise or acknowledgment is made, the claimant need not exhibit the evidence, or state the precise nature or amount of the claim, these being facts to be found by the jury; of course to be found by them according to the evidence in the cause, the language of the court clearly excluding the idea of any necessity for the promise or admission to specify any particular amount. This case is decidedly in opposition to the views of the appellants. Nor can we perceive how their case is materially benefitted by that portion of the decision to which we were particularly referred, where the court say: “The jury must also find to what debt or claim the subsequent promise related.” For after that it is held, that if the plaintiff’s evidence shows but a single indebtedness, the promise might well apply to it. And “if the debtor alleges that there was a different debt to which his promise might apply, the onus of proving it rests on him.” Reference is then made to 2 Greenlf. on Ev., sec. 441, where it is said: “ If the plaintiff proves a general acknowledgment of indebtment, the burden of proof is on the defendant, to show that it' related to a different demand from the one in controversy.” But, in truth, the evidence in the present case raises no difficulty in regard to the identity of the claim. It is referred to by the acknowledgment itself with much particularity, except only in regard to the amount due, which is declared to be “a large sum of money.” — 64 — In reference to the defendants’ third prayer, conceding that if the jury believed the truth of the facts and circumstances enumerated, they might have been at liberty to presume the plaintiff had not, at the death of the testator, any just claim against him on account of his granddaughter Ann, still the presumption was only one of fact- and not of law, imperatively binding upon the jury. Indeed we understood the defendants’ counsel to admit this in his concluding argument. But whether he did so or not, we think it a correct view of the matter, and consequently that the prayer was erroneous, in asking the court not only to instruct the jury they might, but also ought, to find the non-existence of the plaintiff’s claim. In an argument of considerable ingenuity, the defendants’ counsel undertook to show that “ought” did not mean must, and that in the sense in which it was used in the prayer it meant very little, if any, more than “may,” and certainly did not make the presumption or inference asked for one of law, imperatively binding on the jury. But in the case of Columbia Insurance Company of Alexandria vs. Lawrence, 10 Peters’ Rep., 519, under circumstances very similar to the present, the difference between might and ought is clearly announced by the Supreme Court, in an opinion delivered by Mr. Justice Story. It is there said: “If this instruction had merely asked that the jury might presume, or were at liberty to presume, &c., upon the facts and circumstances so stated, there would not have been any just objection to it. But it goes much farther, and insists that the jury cought to presume,’ &c., which, in truth, is removing the whole matter of fact from the jury, and compelling them to decide the point as a conclusive presumption of law. This, we are of opinion, would have been wholly unjustifiable on the part of the court. The instruction called upon the court to decide, not upon a conclusive presumption of law, but upon a mere presumption of fact, a matter which exclusively belonged to the jury to consider and decide.” Believing that the circumstances mentioned in the prayer do not amount to an inference or presumption of law, that the plaintiff had no just claim against the testator, Peterson, — 65 — at his decease, on'account of the education and support of his granddaughter Ann, we think the court did right in refusing the prayer. Supposing our views to correspond with those of the counsel for the defendants, in thinking that the evidence was not sufficient to authorise such a verdict as the jury gave; still finding no error in the questions of law decided by the court, and presented for our consideration by this appeal, we have no authority whatever to reverse the judgment, and therefore it must be affirmed. Judgment affirmed.