McMahan v. Dorchester Fertilizer Co.

Decision Date20 December 1944
Docket Number56.
PartiesMcMAHAN v. DORCHESTER FERTILIZER CO.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Caroline County; Owen Knotts and William R. Horney, judges.

Action on a note by the Dorchester Fertilizer Company, a body corporate, against Harry W. McMahan. Judgment for plaintiff and defendant appeals.

Reversed without new trial.

W Brewster Deen, of Denton, for appellant.

Wilbert L. Merriken, of Denton, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN BAILEY, CAPPER, and HENDERSON, JJ.

DELAPLAINE Judge.

On July 3, 1943, the Dorchester Fertilizer Company, a body corporate, entered suit against Harry W. McMahan, a farmer, of Caroline County, on his sealed promissory note for $370.92, dated December 1, 1930, and payable on June 1, 1931, and obtained a judgment by confession against him for $526.57 and $52.65 as attorney's fee for collection. On motion of defendant the Court struck out the judgment. Defendant then pleaded that the cause of action accrued more than twelve years before institution of suit. When the case was tried on May 11, 1944, defendant admitted that the two partial payments credited on the note, $50 on July 15, 1931, and $20 on September 15, 1931, were the only payments he had made. The Court held that the instrument was not barred by the Statute of Limitations, and rendered judgment in favor of plaintiff for $539.98 and $53.99 as attorney's fee. Defendant appealed from that judgment.

Our first Act of Limitations, passed by the Assembly of the Province of Maryland in 1715, contained the following section pertaining to specialties: 'That no bill, bond, judgment, recognizance, statute merchant, or of the staple, or other specialty whatsoever, except such as shall be taken in the name or for the use of our sovereign Lord the King, his heirs and successors, shall be good and pleadable, or admitted in evidence against any person or persons of this province, after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action above twelve years standing; saving to all persons that shall be under the afore-mentioned impediments of infancy, coverture, insanity of mind, imprisonment, or being beyond the sea, the full benefit of all such bills, bonds, judgments, recognizances, statutes merchant, or of the staple, or other specialties, for the space of five years after such impediment removed, any thing in this act beforementioned to the contrary notwithstanding.' Acts of 1715, c. 23, § 6; Laws of Maryland, revised by Maxcy, 1811, vol. 1, 84-86.

It is a familiar rule that, while an action on simple contract, in order to escape the bar of the Statute of Limitations, must be commenced within three years from the time the cause of action accrued (Code 1939, art. 57, § 1; Vincent v. Palmer, 179 Md. 365, 374, 19 A.2d 183, 189), a promise to pay a debt on simple contract, after it is barred by the Statute of Limitations, revives the remedy. Even a mere acknowledgment of such a debt will remove the bar of the statute, because if the debtor acknowledges the debt it is implied that he promises to pay. Furthermore, part payment of principal or interest is considered an acknowledgment. Burgoon v. Bixler, 55 Md. 384, 392, 39 Am.Rep. 414. But the section of the statute pertaining to specialties is given an entirely different construction. In the case of a specialty, the Court of Appeals has repeatedly held that an acknowledgment of the debt at any time during the twelve-year period will not arrest the operation of the statute, and an express promise to pay the debt subsequent to the twelve-year period will not revive the remedy. In other words, a specialty is extinct after the period of twelve years, and thereafter no action can be maintained on the specialty except where the creditor has been under one of the impediments mentioned in the statute. It was recognized at an early day, however, that it was not the object of the Maryland Assembly, in passing the Act of Limitations of 1715, to prohibit admission in evidence of a specialty above twelve years' standing in any case where it was not itself the foundation of the action. Lamar v. Manro, 10 Gill & J. 50, 61. While a specialty may not be used as a cause of action after it has been barred by the lapse of the statutory period, it may be admitted in evidence to show consideration to support a new promise. But it is emphasized that in order to recover on an express promise to pay a specialty after it is barred by the statute, the suit must be brought upon the new contract. Carroll v. Waring, 3 Gill & J. 491; Young v. Mackall, 4 Md. 362, 367; Felty v. Young, 18 Md. 163; Wright v. Gilbert, 51 Md. 146, 156; Brooks v. Preston, 106 Md. 693, 706, 68 A. 294; County Trust Co. v. Harrington, 168 Md. 101, 105, 176 A. 639; Frank v. Wareheim, 177 Md. 43, 56, 7 A.2d 186.

In conformity with these basic principles, Judge Alvey expressed the opinion in 1875 in Leonard v. Hughlett, 41 Md 380, that where the remedy on a single bill becomes barred by the Statute of Limitations upon the expiration of the statutory period of twelve years, mere payment of interest on the debt will not raise any such promise as will support an action for the amount due on the single bill. In 1904 the Statute of Limitations was found to operate unjustly in Trustees of St. Mark's Evangelical Lutheran Church v. Miller, 99 Md. 23, 57 A. 644. In that case Miller gave the church trustees a sealed note in 1882, and made payments of interest thereon until...

To continue reading

Request your trial
10 cases
  • Booth Glass Co., Inc. v. Huntingfield Corp., 25
    • United States
    • Maryland Court of Appeals
    • December 2, 1985
    ...to be engrafted upon it. See Walko Corp. v. Burger Chef Systems, 281 Md. 207, 211, 378 A.2d 1100 (1977); McMahan v. Dorchester Fert. Co., 184 Md. 155, 160, 40 A.2d 313 (1944). Indeed, the General Assembly has expressly provided exceptions to § 5-101 in those instances where it determined th......
  • Johns Hopkins Hospital v. Lehninger
    • United States
    • Court of Special Appeals of Maryland
    • May 6, 1981
    ...statute of limitations merely on the grounds that such exception would be within the spirit of the statute. McMahan v. Dorchester Fert. Co., 184 Md. 155, 160, 40 A.2d 313 (1944). To the contrary, the Court looks to the public policy served by the defense of limitations, and permits it to fu......
  • Conestoga Title Ins. Co. v. Patchell (In re Patchell)
    • United States
    • U.S. Bankruptcy Court — District of Maryland
    • June 23, 2017
    ...is three years from the date the action accrues. Md. Cts. & Jud. Proc. Code Ann. § 5–101 ; McMah a n v . Dorchester Fertilizer Co. , 184 Md. 155, 157–158, 40 A.2d 313 (1944). However, relying upon the sealed Agreement (and not the Guaranty) as the primary document that governs Mr. McCoy's r......
  • Lynch v. AHC Mgmt., LLC
    • United States
    • U.S. District Court — District of Maryland
    • December 14, 2020
    ...ground that such exception would be within the spirit or reason of the statute." Walko, 281 Md. at 211 (quoting McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 160 (1944)); see also Pasco v. Protus IP Sols., Inc., 826 F. Supp. 2d 825, 842-43 (D. Md. 2011) ("Under Maryland law, 'statutes ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT