McGinty v. Succession of Henderson

Tlie opinion of the Court was delivered by Fenner, J. The suit is for $25,000, balance of a loan of $35,000, alleged to have been made to tlie decedent, John Henderson, on May Jlth, 1883. The defenses are two: 1. A denial of the debt; 2. tlie prescription of throe years. We will consider them separately. [383] I. The fact of the loan is proved by a variety of cumulative evidence : 1. Two witnesses, one the plaintiff, the other the private bookkeeper of Mr. Henderson, affirmatively prove the loan as made by the delivery .to Henderson of a bank check for $35,000 payable to the order of Mrs. Jolm McGinty, and by her endorsed to the order of Henderson, and delivered to and collected by him. McGinty further establishes the terms of the loan to have been that Henderson was to pay annually the interest at six per cent on the whole amount, and to repay the principal in seven annual installments of $5000 each, or sooner, if demanded. 2. The check itself for $35,000 is produced corresponding to the description above given, deposited in bank.by Henderson, and duly paid and cancelled. • 3. Tn answer to a submenu duces :iecunt, Mrs. Henderson produced in 'court, the cancelled checks and check-book of Henderson; from which it appears that-on July 29th, 1884, Henderson drew checks in favor of John McGinty for $7100, being, as-itho stubs show, $2100, as 6 pier cent interest on $35,000, and $5000 as the .first installment of the debt; and fon 'July 16th, 1885, that he drew .aii'oííiói". check in favor of Mrs. Mc-'Ginty for $6800, being, as the stubs'inilicfite, $1800 as 6 per cent interest on the $30,000 remaining due and $,5(Í0í).as the second installment. Henderson died in the latter part df ;188¿í¡y. ''The probative force of the foregoing evidence, in absence of any contradictory pn-oof, is too conclusive Wbe byefthrown by mero insmna•tions based on slight eireumstancesbvhiclb when examined, are entitled to no weight. We consider tlie debt fully piroved:-:-- IT.' Actions for the piayment of moneydont are prescribed by three years. R.' O. O.. 3538. ■ As the plaintiff’s own testimony ¿tows that he reserved the right to demand the return of the whole loan, at his pleasure, the prescription must he held to run from the date of the loan. Andrews vs. Rhodes, 10 Rob. 52. His suit was only instituted in Octbber, 1887, more than four years after the date of the loan, and the- pilca of prescription is good unless barred by legal piroof of interruption. Article 2278 Rev. C. C. piro vides: “ L’arol evidence shall not be received to prove any acknowledgment or promise of a piarty deceased to piay any debt or liability, in order to take such debt or liability out of [384] prescription * * * but in tlie oases mentioned in tliis article, tlie acknowledgment or promise to pay sliall be proved by written evidence signed by the party, who is alleged to have made the acknowledgment or promise, or by his specially authorized agent or attorney in fact.” Partial payment made on a debt before prescription is acquired, is held to be such an implied acknowledgment as interrupts prescription but such payment, by a deceased debtor, like any other acknowledgment, must be proved by written evidence signed by him. In this case, however, the payments are proved by the written checks of the debtor signed and issued by him to the creditor who held and owned them and only delivered them to the bank on their due payment; and by evidence conclusively showing that said checks were issued as payments on this particular debt. These chocks undoubtedly evidence a payment by Henderson to McGinty on some account, and in discharge of some obligation, and while they do not, of themselves, establish a payment on this particular debt, it is conclusively settled that where an acknowledgment in writing signed by a deceased debtor is proved, parol evidence is admissible to show the particular debt to which the acknowledgment was intended to apply. Harrison vs. Dayries, 23 Ann. 216; Succession of Kugler, id. 455; Tilden vs. Succession, 33 Ann. 1068. The jurisprudence in England and in other States is similar. Hartley vs. Wharton, 11 Ad. & Ellis 934; Mitchell vs. Clay, 8 Texas 447; Bird vs. Gammon, 3 Bing. (N. C.) 883; 3d Reed on Stat. of Frauds, § 1089; Wood on Limitations, p. 218. Counsel for defendant cites a line of authorities, holding that the acknowledgment to take a debt out of prescription must be made to the creditor or his agent, and that a mere writing acknowledging a debt retained by the person making-it and never delivered to the creditor or any one else, cannot servo as an interruption of prescription. Wood on Limitations, p. 195; Allen vs. Collins, 70 Mo. 138; Edwards vs. Cully, 4 Hurlst. & Nor. 378. But it is evident that these authorities have no application to this case, where the writings relied on, the checks, were issued and delivered to tlie creditor, were parted with by him only on their payment and returned to the possession of the maker only to serve him as evidence of such payment. If the plaintiff were disputing the payment in this case, these checks endorsed by him», would be sufficient evidence thereof, and it would be unreasonable to debar him from using them for the same purpose. Equally inapplicable are authorities quoted holding that mere entries on the books of a debtor cannot serve as an acknowledgment interrupt [385] ing prescription. Tlie checks are not mere entries on his books, and the entries on the corresponding stubs of the check-book are not offered as, in themselves, operating an interruption,, but-as the natural and proper evidence to explain and establish the purpose for which the checks were issued and the subject-matter to which they applied. Objections were made to the subpcena duces tecurni under which defendant was required to produce the checks and books. The ground assigned for this objection is the provision of Eev. C. C. Art. 3550, which declares : “ Good faith not being required on the part of the person pleading this prescription, the creditor cannot compel Mm or his heirs to swear whether the debt has or has not been paid, etc.” All the other objections go to the effect of the evidence; and this one is manifestly not sustained by the article quoted, inasmuch as no call was made on' defendant to swear whether the debt had, or had not, been paid. We find no authority and no reason for extending the proliibition beyond the terms of the statute, and for exempting the defendant from compulsory process to produce competent written evidence in possession. We, therefore, conclude that the plea of prescription was properly overruled. Judgment affirmed.