McClurg v. Howard

Bliss, Judge, delivered the opinion of the court. The plaintiffs brought suit in the Christian Circuit Court against the members of the firm of Nowlin, Howard & Co., for goods and merchandise sold them in the usual course of trade, which suit Howard alone defended, and pleaded the statute of limita [367] tions. He claims that he went out o£ the firm in 1857 (of which plaintiffs had notice), which was more than five years before the commencement of the suit. The plaintiffs, to take the case out of the statute, relied upon the fact that the sums of $500 and $30 were, in 1861, paid upon the debt by this defendant’s co-partners ; but the Circuit and District Courts held that it did not have that effect, and judgment for defendant was rendered and affirmed. Few questions have been more zealously contested in the common-law courts than the one involved in this record. The case of Whitcomb v. Whiting, 2 Doug. 652, decided by Lord Mansfield in 1781, was for many years treated as establishing the doctrine that one of the makers of a promissory note, by the payment of the interest and part of the principal within six years (the limitation fixed by 21 Jas. I, ch. 16), took the case out of the statute as to the other makers as well. This case was for a time generally followed by the courts of the United States, and is still considered the law of England, and has been applied to all partnership debts, as well as to joint makers of a bill or note; and no distinction seems to have been made between a part payment before the statute had run, and one made .after the expiration of the time limited. The whole subject is learnedly discussed in the notes to the fifth edition of Angelí on Limitations, pp. 273-9; also in a note to section 324, Story on Partnership. The general effect of a new promise or acknowledgment, which, had been the subject of such conflict of opinion, has been set at rest in Missouri by the adoption of the substance of the statute of 9 Edw. IV, ch. 14, so far as it pertains to this subject, wrhichis embodied in sections 28, 29, and 30, pp. 920-21, of Wagner’s Statutes, by which all such new promises and acknowledgments must be in writing. But the express exception made by section 30, that the statute shall not take away or lessen the effect of a part payment, leaves cases like the one at bar precisely as though it had not been adopted. The effect of such payments has been very elaborately considered in the Court of Appeals of New York, in Van Kenren v. Parmelee, 2 Comst. 523, and in Shoemaker v. Benedict, 1 Kernan, 176. In the former case the part payment was made after the statute had run and the defendant had been [368] discharged by its operation. The decision could only have been that, under such circumstances, a co-obligor had no power, as against the others, to revive an obligation already discharged j although the reasoning of Judge Bronson, in delivering the opinion, goes much further, and would apply as well to a case like the present as to the one before him. But in Shoemaker v. Benedict, the court expressly held that a part payment by a joint obligor, made before the statute had run, had no effect to prevent its running against his co-obligors. I confess it would be very difficult to reply to or resist the force of the reasoning of Judge Allen, who gave the opinion of a majority of the court in that case; and were the question a new one in Missouri, I would favor the application of its doctrine to the present case. But the question was expressly decided the other way by this court in Craig v. Callaway, 12 Mo. 94, and the decision was in accordance with the authorities at that time. The business and credits of our people have ever since been conformed to that view, and if a change is deemed expedient, it should' be made by the Legislature in reference to future indebtedness. We are referred by counsel to Smith’s Adm’r v. Irwin, 37 Mo. 169, but that case is entirely consistent with Craig v. Callaway, and only holds that an administrator can not, after the statute has run, bind the co-obligor of his intestate; and the court would doubtless have held, had it been necessary, that the intestate, if living, would not have had that power. Regarding this question as not an open one in Missouri, we must hold that the Circuit Court erred in deciding that the payment of part of the debt by one partner could not exténd the operation of the statute as to the others. The record in this case, sent up from the Circuit Court, is very badly got up and more than twice as long as was necessary or proper. It is full of repetitions — copying papers two or three times, for no apparent reason than to make costs. This practice should not be permitted. The judgment is reversed and the cause remanded for further proceedings, with directions to the Circuit Court to tax one-third of the cost of transcript of the original record to the circuit clerk, and one-third to the plaintiffs, whose attorneys should have prepared a better bill of exceptions. The other judges concur.