DeRaismes v. DeRaismes

The opinion of the court was delivered by Gummeke, Chief Justice. The plaintiff brought this action to recover the amount due on an interest-bearing promissory note, made by the defendant, dated May 22d, 1896, for the sum of $2,500, and payable to the order of the plaintiff, on demand. The ’action was begun in June, 1902, more than’ six years after the date of the note. The defendant pleaded non assumpsit infra sex annos. At the trial the plaintiff attempted to overcome the defence of the statute of limitations by showing a promise to pay the amount due on the note, made by the defendant less than six years before the suit was begun. 'Tb prove this promise two letters were produced and offered in evidence, written by the defendant’s son, one dated December 4th, 1898, and the other May 29th, 1901, in each of which there was an acknowledgment that the note had not been paid and a promise that the defendant would pay it as soon as she was financially able to do so. Each of these letters also contained a statement that it whs written at the request of the defendant. To overcome this evidence the defendant’s son was examined, and testified that his mother had never authorized him to make these acknowledgments and promises for her. The court thereupon charged the jury that if they believed the acknowledgment of the debt and the promise [17] to pay it contained in these letters were written by the direction of the defendant, their verdict should be for the plaintiff. The jury so found. The tenth section of the statute of limitations (Gen. Stat., p. 1976) provides that “in actions of debt or on the case, grounded on 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 this act or to deprive any person of the benefit thereof, unless such acknowledgment or promise shall be made or continued by, or in some writing to be signed by, the party chargeable thereby.” It is an exact transcript of the first section of the English statute of 9 Geo. IV., c. 14, passed in the year 1828, and commonly known as Lord Tenterden’s act. By the construction put by the English courts upon the words “signed by the party chargeable thereby,” an acknowledgment or promise signed by a duly-authorized agent of the debtor was held not sufficient to take the case out of the statute. Hyde v. Johnson, 2 Bing. N. C. 776; Glarh v. Alexander, 8 Scott N. R. 147. In the case first cited, Chief Justice Tindal, after pointing out that the legislature had in many prior statutes, particularly in various sections of the statute of frauds, given equal efficacy to written instruments when signed by the parties, and when signed by their agents, says: “It appears, therefore, that the legislature well knew how to express the distinction between a signature by the party and a signature by his agent. When, therefore, we find in the statute now under consideration that it expressly mentions the signature by the party only, we think it'a safer construction to- adhere to the precise words of the statute, and that we should be legislating, not interpreting, if we extended its operation to writings signed, riot by the party chargeable thereby, but by his agent.”' The reasoning of' the learned Chief Justice seems convincing. -But'even if the meaning of the phrase■ itself was [18] not clear, the construction which should be given to it in our statute -is free from -doubt. It became a - part of that statute at the time of its revision, in 1874, many years after the decision of Hyde v. Johnson and of Clark v. Alexander, and the rule is entirely settled - that where a statutory provision of doubtful import has been adopted from the statute of another state or country, after it has received judicial construction in that jurisdiction, it will be presumed that the interpretation adopted in the state or country from which it is taken has been accepted, as well as the words. Fritts v. Kuhl, 22 Vroom 191; Anderson v. Camden, 29 Id. 519; Lessee of Gray v. Askew, 3 Ohio 466; Langdon v. Applegate, 5 Ind. 327; Rigg v. Wilton, 13 Ill. 15; Adams v. Field, 21 Vt. 256; Rutland v. Mendon, 1 Pick. 154; People v. Coleman, 4 Cal. 48. The justice of such a presumption is peculiarly free from doubt in its application to this particular statutory provision. The first section of Lord T-enterden’s act, after having been judicially declared, by the cases above, cited, not to apply to a writing signed by the agent of the party chargeable thereby, was, in 1856, amended by the English parliament so- as to- read “signed by the party chargeable thereby, or by his agent duly authorized.” See Mercantile Law Amendment Act, 19 and 20 Vict., c. 97. Eighteen years later our legislature, with that fact before them, adopted into our act for the limitation of actions this provision as it originally appeared in the English statute, without the amendment. The evidence offered by the plaintiff for the purpose of taking the case out of the -operation of the statute not being efficacious to accomplish that result, a verdict should have been directed for the defendant. We have not overlooked the contention of the plaintiff that as the note sued upon bore interest, it did not become due until actual demand made, but we consider it without merit. It was decided by this court, as early as 1831, in Larason v. Lambert, 7 Halst. 247, that in the case of a promissory note payable on demand, the time when the [19] statute of limitations began to run against the maker should be computed from the making of the note, and the correctness of that decision has never been questioned. In that case the note did not draw interest, but the rule is the same whether the note draws interest or not. Ang. Lim., § 95, and cases cited. Counsel refers us to Merritt v. Todd, 23 N. Y. 28, in support of his contention. But that case merely decides that, as between holder and endorser, a demand note which bears .interest does not become due until demand is actually made, and has no application to the rights of the holder as against the maker. It is so declared in the later case of Wheeler v. Warner, 47 Id. 519, where it was expressly ruled that “a promissory note, payable on demand, whether with or without interest, is due forthwith, and an action thereon is barred against the maker by the statute of limitations if not brought within six years after its date.” But even if this contention on the part of the plaintiff was sound, it would not now avail him. The case was tried upon the theory that the note was outlawed, unless it was taken out of the operation of the statute by the new promise contained in the letters, and the plaintiff’s verdict cannot be sustained upon a theory of the law antagonistic to that upon which the case was tried. To do so, upon a rule to show cause; would be to deprive the defendant of his right to have the judgment of the court of last resort upon the soundness of that theory as applied to the facts of the case. Hays v. Pennsylvania Railroad Co., 13 Vroom 446; Halsey v. Lehigh Valley Railroad Co., 16 Id. 26; Sensfelder v. Stokes, 40 Id. 86. The rule to show cause should be made absolute.