Whitney v. Reese & Heylin

By the Court McMillan, J. This action is brought upon the joint promise of the defendants as partners. The plaintiffs therefore must prove the joint contract, and recover against both defendants, or they cannot recover at all. Fitz v. Clark et al., 7 Minn. 217. By the finding of the referee, it appears that for some time prior to January 1, 1847, but not after-wards, the defendants were partners under the firm name of Reese & Heylin; that about the 11th day of November, 1845, the defendants at Philadelphia, executed to the plaintiffs their certain promissory note for $1,358 38, in consideration of goods and merchandize sold to them by the plaintiffs. That [146] about tbe 28th day of April, 1846, the defendants at said city of Philadeljihia, in consideration of the loan and advance of moneys to them by the plaintiffs, executed to the plaintiffs their certain other promissory notes for the sum of $300, both of which notes are held and owned by the plaintiffs, and that after the maturity of each of said notes, and prior to the 21st day of April, 1854, more than six years elapsed. That by the laws of Pennsylvania in force in said State on the 11th day of November, 1845, and still in force in said State, it is provided that all actions upon the case, debt, or promissory note, shall be commenced and sued within six years next after the cause of action shall have accrued, and not after; that all the parties, plaintiffs and defendants in this action, were during all the time aforesaid, and still are residents of the said city of Philadelphia, and that the complaint in this action was filed, and the summons issued, on the 5th day of September, 1862. That on the 21st day of March, 1851, the defendants made and delivered to the plaintiffs a paper-writing in the words and figures following, viz : “ Philadelphia, March 21st, 1851. “ Gentlemen : — You are hereby authorized to compromise with Charles Hoyt, Esq., for his acceptance dated May 11, 1846, for $394 94, which you now hold as collateral on our debt. Ve hereby agree that the balance of said draft and interest shall be charged against us. “ EEESE & HEYLIN. “ To Messrs. WhiGuey, Seholt, <& Go.: ” Arid that afterwards and on the 21st day of April, 1854, at said city of Philadelphia, the defenda/nt, TTeylvn, made and delivered to said plaintiffs, a certain other paper-writing in the following words and figures, viz : ' [147] “ Philadelphia, April 21, 1854. “ Messrs. Whitney, Scholt, ds Co. : “ Gentlemen: — We hereby agree that the balance cine from the undersigned to your house shall not be barred by the statute of limitations. $2,365 66. “ BEESE & JIEYLIN, in liquidation, “ By J. B. HEYLIN.” The plaintiffs’ action is barred by the statute of limitations, unless, as the plaintiffs claim, the writing of March 21, 1851, or April 21, 1854, take the case out oí the statute, and prevent its operation against the claim. Ye are then to consider the effect of these instruments in the order of their date. We come therefore to the writing of March 21, 1851. Is this such an acknowledgment of, or promise to pay the plaintiffs’ debt, as to take the case out of the statute ? We think it is not. Our statute upon this subject is as follows: “No acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation oí this chapter, unless the same is contained in some writing signed by the party to be charged thereby.” Comp. Stat. Ch. 60, Sec. 23. Without going into a review of the authorities upon this point, our examination of the subject leads us to the conclusion that the weight of modern decisions establishes this as the rule on this subject; that there must be either one express promise, or an acknowledgment expressed in such words, and attended by such circumstances, as give to it the meaning, and therefore, the force and effect of a compromise. 2 Parsons on Cont. p. 347, and authorities cited; Bell v. Morrison, 1 Peters, 362; Allen v. Webster, 15 Wend. 286; Stafford v. Richards, Ib. 306. And in the case of an acknowledgment or implied promise, there should be a direct recognition of the indebtedness sued on, from which a willingness to pay the same may be reasonably implied. 2 Parsons on Cont. p. 349; Stafford v. Bryan, 3 Wend. 532; Clark v. Dutcher, 9 Cow. 674; [148] Suter v. Shuler, 10 Harris, 308; Yan v. Kerr, 47 Penn. 334; Woodbridge v. Allen, 12 Met. 470; Bell v. Morrison, 1 Pet. 362; Sands v. Gelstin, 15 Johns. 511; Bailey v. Crane, 12 Pick. 323; Angell on Lim. Ch. 21, Secs. 4 and 5. In Bell v. Morrison, cited ante, Justice Story says : “ 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 winch 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.” The acknowledgment must be on the one hand broad enough to include the specific debt in question, and on the other sufficiently precise and definite in its terms to show that this debt was the subject matter of the acknowledgment. 2 Pars. on Cont. p. 349. It ought clearly to appear in all cases that it relates to the identical debt which is sought to be recovered on the strength of it. Angell on Lim. p. 255; Sands v. Gelstin, 15 Johns. 511; Clark v. Dutcher, 9 Cow. 674. And where there are more debts than one due from the defendant to the plaintiff, it must appear to which it applies, or it cannot be applied to either. Bailey v. Crane, 21 Pick. 323, and authorities cited aznte. In the case under consideration, the only language in the instrument of March 21st, 1851, referring to any indebtedness of defendants to the plaintiffs, is in identifying the acceptance of Hoyt, which they are authorized by the writing to compromise. “ Gentlemen: — You are hereby authorized to compromise with Charles Hoyt, Esq., for his acceptance dated May 11, 1846, 'for $394 94, which you now hold as [149] collateral on our debt.” To wbat does “ our debt ” refer ? It appears from tbe finding of tbe referee, that at this time the plaintiffs held two notes of the defendants of different dates and amounts, given for distinct and separate accounts, one dated November 11, 1845, for goods, wares and merchandize, sold by plaintiffs to defendants between the years 1840 and November 11, 1845, for $1,358 38 ; the other dated April 28, 1846, for $300, for money loaned and advanced. These several notes formed separate and distinct debts, although held by the same persons; there may be a defense to both or only one of them, and the defense to each may be the same or different. The Hoyt acceptance may have been collateral to both, or only one of them, and to either of them. How are we to determine which? The language is too vague and indefinite to lead to any certain conclusion. We are unable to point the acknowledgment to both or either with reasonable certainty. There is, therefore, in this instrument, no such acknowledgment of the debt as will take the case out of the statute. It remains to consider the instrument of April 21, 1854. This was executed by ITeylin alone, in the firm name, long after the dissolution of the partnership, and after the claim had been barred by the statute of limitations. Hnder such circumstances, we think, whatever may be the effect of the instrument as against Heylin, it could have no effect as to Eeese, the other partner. 2 Pars, on Cont. p. 360 (note); Bell v. Morrison, 1 Pet. 351; Van Keuren v. Parmelee, 2 Comst. 523. What would have been the effect if the statute had not run against the claim, we heed not consider, and express no opinion at this time. The claim being barred as to Eeese, the plaintiffs must fail to sustain a joint promise, and cannot recover. Judgment affirmed.