Hornblower v. George Washington University

Mr. Justice Van Orsdel delivered the opinion of the Court: It is well settled that, where counsel, in his opening statement to the jury, fails to state a cause of action, it is within the power of the trial court to render judgment upon such statement for the defendant. Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261; 26 L. ed. 539; Brown v. District of Columbia, 29 App. D. C. 273. The trial court, however, should not exercise'this power unless it clearly appears from the plaintiffs’ own statement that he cannot recover. This is a con — 72 — elusion that trial courts rarely reach, and a rule that should not he applied except in cases where the statement clearly shows, that no cause of action exists. The rule laid down in Oscany an v. Winchester Repeating Arms Co. supra, and approved in the case of Butler v. National Home, 144 U. S. 72, 36 L. ed. 351, 12 Sup. Ct. Rep. 581; is as follows: “Of course, in all such proceedings, nothing should be taken without full consideration against the party making the statement, or admission. He should he allowed to explain or qualify it, so far as the truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so-declare and give such direction as will dispose of the action.” The reason assigned by the trial court in the case at bar for directing a verdict was that, from the statement of counsel for plaintiffs, it appeared that the action was barred by the statute of limitations. Referring to the four grounds upon which counsel for plaintiffs stated that he expected to prove that the bar of the statute did not apply, we will dispose of them in the order stated: 1. Counsel stated that plaintiffs intended to prove a custom that they had of waiting a reasonable time before submitting their bills for payment. Plaintiffs could not avail themselves of evidence to this effect. The date of presenting a bill for payment does not establish or fix the date when the bill became due, or when the indebtedness, if any, accrued. The-question here to be determined is, When did the indebtedness, as claimed by plaintiffs, accrue? They were the architects in charge, superintending the construction of the buildings, and it seems to have been their duty to approve the bills of the contractors. It appears from the statement that the last bill was approved March 21, 1903. We must assume that in this they performed their duty. The bills, it will be presumed, were not approved for payment until the work was finished and completed. This, we think, must be considered the date when the services of plaintiffs terminated, and any claim they may-have had for services rendered immediately accrued. — 73 — 2. Did the letter written by the president of defendant corporation to Joseph C. Hornblower on December 22, 1905, rescue this case from the operation of the statute of limitations ? This letter neither acknowledges any indebtedness, nor names any amount, but simply states that the claim of plaintiffs had been referred to Edson for adjustment. It is not for the court to presume what that adjustment would have shown, nor to presume that because the letter referred to a claim that there must have been an existing indebtedness, or that such reference constituted an admission of indebtedness on the part of the president. Sec. 1271 of the Code [31 Stat. at L. 1390, chap. 851] provides, among other things, that, “in actions of debt or upon the case grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of the statute of limitations, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby.” A number of cases, English and American, are cited by counsel for plaintiffs in support of the claim that the letter written by President Needham should operate to stop the running of the statute of limitations in favor of the defendant corporation. A careful examination of the decisions cited discloses that in each case the writing relied upon acknowledged a debt due from the writer. This seems to be the test. There must be some statement that is equivalent to an acknowledgment of indebtedness. In fact, the rule announced in this country seems to go further and require that there shall not only be an acknowledgment of indebtedness, but a promise to pay. In Shepherd v. Thompson, 122 U. S. 231, 30 L. ed. 1156, 7 Sup. Ct. Rep. 1229, a case appealed from the supreme court of the District of Columbia, the leading decisions in this country and many English cases are referred to and reviewed. The' following rule, announced by Mr. Justice Story in Bell v. Morrison, 1 Pet. 351, 7 L. ed. 174, after quoting from the — 74 — opinions in Clementson v. Williams, 8 Cranch, 72, 3 L. ed. 491, and Wetzell v. Bussard, 11 Wheat. 309, 315, 6 L. ed. 481, 483, is quoted and adhered to: “We adhere to the doctrine thus stated, and think it the only exposition of the statute, which is consistent with its true object and import. If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and, if any conditions are annexed, they ought to be shown to be performed. If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. If there be accompanying circumstances, which repel the presumption of a promise or intention to pay; if the expressions be equivocal, vague, and indeterminate, leading to no certain conclusion, but at best to probable inferences, which may affect different minds in different ways, — we think they ought not to go to the jury as evidence of a new promise to revive the cause of action.” In the same case, the court quoted with approval the language of the court in Bell v. Rowland, Hardin (Ky.) 301, 3 Am. Dec. 729, as follows: “Upon the whole, we are of opinion that the only safe rule that can be adopted, capable of any reasonable degree of certainty, is that, in order to take the ease out of the statute of limitations, an express acknowledgment of the debt, as a debt due at that time (coupled with the original consideration); or an express promise to pay it,— must be proved to have been made within the time prescribed by the statute.” In the ease at bar there is neither an admission of indebtedness, nor a promise to pay on the part of Needham, as the representative of defendant company. No reasonable inferences can be drawn from the letter that would present a proper issue for submission to a jury. Our attention has been called to no case where a writing, such as appears in this case, has been held to constitute such an acknowledgment of in — 75 — debtedness and promise of payment as would revive an obligation barred by the statute of limitations. 3. It is contended that the agreement to submit this controversy to arbitration operated to stop the running of the statute of limitations. We think it is a well-settled principle that a defendant cannot avail himself of the bar of the statute of limitations, if it appears that he has done anything that would tend to lull the plaintiff into inaction, and thereby permit the limitation prescribed by the statute' to run against him. If, by this agreement to arbitrate, it appears from the record that plaintiffs, by the action of the defendant, were induced not to bring their suit, then we think defendant would be estopped from pleading the bar of the statute of limitations. If, however, after the agreement was made to submit to arbitration, plaintiffs took no steps toward having the matt'er submitted, and did not insist upon the defendant’s submission of the matter, such an agreement, we think, cannot be held to stop the running of the statute. It not only appears from the statement in this case that plaintiffs took no steps toward having a hearing before the arbitrator, but there is no affirmative showing that defendant did anything to prevent the arbitration. It is not sufficient, if it should appear, that defendant failed, or even refused, to appear before the arbitrator and submit its case. Defendant must have done something that amounted to an affirmative inducement to plaintiffs to delay bringing action. The statement does not indicate that plaintiffs were deterred or delayed in bringing their suit because of the failure of the parties to appear and submit the matter to the arbitrator. Inasmuch as defendant is not shown to have used the agreement to arbitrate as a means for inducing plaintiffs to refrain from bringing suit until barred by the statute of limitations, we think the selection of an arbitrator amounted to nothing more, than a part of the negotiations between the parties looking to an amicable adjustment of their differences. 4. Counsel for plaintiffs stated that he expected to escape the bar of the statute of limitations on defendant’s notice of recoupment. Defendant did not even plead a set-off. It pleaded — 76 — non assumpsit and the bar of the statute of limitations. It gave notice that it would seek to recoup the damages sustained by reason of the negligent manner in which plaintiffs performed their work. Even if defendant had entered a plea of recoupment, coupled with non assumpsit, it would not amount to an admission of the existence of a cause of action, for the plea of non assumpsit is a denial of liability. It is well settled that the plea of recoupment alone by a defendant is equivalent to an admission that the plaintiff has a cause of action; but that is not this case. The burden was upon plaintiffs to establish their' right of recovery, and defendant, upon the issue tendered, was entitled to interpose any available defense. The judgment is affirmed with costs, and it is so ordered. Affirmed.