In re Deep River Nat. Bank

• Decision Date: 18 December 1900
• Citation: 47 A. 675,73 Conn. 341
• Parties: In re DEEP RIVER NAT. BANK.
• Court: Connecticut Supreme Court

47 A. 675

73 Conn. 341

In re DEEP RIVER NAT. BANK.

Supreme Court of Errors of Connecticut.

Dec. 18, 1900.

Appeal from superior court, Middlesex county; John M. Thayer, Judge.

In the matter of the estate of Clinton B. Davis, deceased. The claims of the Deep River National Bank were disallowed by the commissioners, and it appealed to the superior court, where there was a trial by the court, resulting in judgment for claimant, and the administrator appeals. Affirmed.

The statement of claims filed in the superior court alleged that said Davis was an indorser upon two described notes. The respondent pleaded the statute of limitations, to which answer there was a reply of a written acknowledgment and promise to pay within six years, and a rejoinder denying the averments of the reply. The court found the following facts: "(1) Clinton B Davis died in September, 1898, and his estate is in settlement as an insolvent estate. There were duly presented to the commissioners on said estate several notes, of which the appellant the Deep River National Bank is owner and holder, some of which were allowed by the commissioners, and some of which were disallowed. (2) Two of said notes, and the only ones about which there was any controversy on the hearing before this court, were as follows, viz.: One for the amount of $1,656.24, dated February 2, 1891, signed by Stevens, Corwin & Co., to the order of the Higganum Manufacturing Corporation, and indorsed by said corporation and by George M. Clark and said Clinton B. Davis; the other for $5,000, dated January 14, 1891, signed by said Higganum Manufacturing Corporation, payable to its own order, and indorsed by it and by said Clark and said Davis. (3) Each of said notes was payable six months after date. Neither of said notes was paid when due. Each was duly protested for nonpayment, and all parties duly notified. (4) Said Clark was president of said Higganum Manufacturing Corporation, and said Davis was its treasurer and secretary. Said corporation became insolvent and went out of business in 1891, and shortly after the Cutaway Harrow Company, a corporation, was formed, with the same officers, and carried on a business similar to that of said insolvent corporation. (5) Various payments have been made on said notes,—some in 1891 and 1892, as dividends from said insolvent corporation's estate, and some in 1897 and 1898, by said Cutaway Harrow Company, as hereafter described. The amount of said payments is $1,896.97. (6) Said Cutaway Harrow Company became insolvent in the fall of 1898. (7) Under an arrangement made between said Deep River National Bank and said Cutaway Harrow Company by its treasurer, Clinton B. Davis, in the spring of 1897, said bank was to discount paper for said harrow company, and out of the proceeds of said discounts said bank was to receive five per cent. thereof, to apply on said described notes. (8) Upon the trial the appellant, to take said notes out of the statute of limitations, offered in evidence the letters hereto annexed, as Exhibits 1, 2, 3, 4, and 5. To this evidence the appellee objected upon the ground 'that they were not shown to be the letters of Clinton B. Davis, but were in fact the letters of the Cutaway Harrow Company, and that they were not sufficient evidence of a new and continuing contract, in accordance with Gen. St. § 1094; nor were they material to the facts in issue, as the appellant, in his pleadings, had alleged a promise in writing on the part of Clinton B. Davis.' The court sustained the objection, it being apparent upon the face of the letters that they were signed by means of a stamp. Thereupon the appellant offered evidence to prove, and from such evidence and the letters themselves the court found, that said letters were dictated by said Clinton B. Davis to a stenographer employed by said Cutaway Harrow Company, who after wards, by direction of said Davis, transcribed them upon a typewriter, and by said Davis' direction affixed the signature appearing thereto by means of a rubber stamp, which was provided with the purpose of having it used by the typewriter in that manner, and save said Davis the trouble of signing the correspondence personally. Said letters were written about the business of said Cutaway Harrow Company under the letter heads of said company, and when checks were inclosed they were the checks of that company, and the notes inclosed for discount were the property of said company. The words 'me,' 'myself,' and 'the writer,' found in said letters, refer to said Clinton B. Davis; and the Mr. Clark referred to therein was Mr. George M. Clark, the indorser of said notes. Said bank held no other notes of the Higganum Corporation or other person at that time on which said Clark or said Davis were indorsers, and the indorsements referred to in said exhibits were the indorsements of said Clark and said Davis upon the two notes here in question. After such proof had been offered the appellant again offered said exhibits in evidence, said objection was renewed and overruled, and the appellee duly excepted. (9) No evidence other than said exhibits was introduced to prove a written acknowledgment or promise, signed by said Davis, to remove the bar of the statute of limitations.

(10) Upon the argument the appellee's counsel claimed, and asked the court to rule, that said letters were not sufficient evidence of an acknowledgment or promise, under section 1094, Gen. St., to take the claim of the appellant out of the statute of limitations.

(11) The court overruled said claim, and allowed the appellant the balance due upon said notes, as well as the balance of its claim."

Said letters, Exhibits 1, 2, 3, 4, and 5, were all signed by said stamp, "Clinton B. Davis, Treasurer," and were addressed to the Deep River National Bank, or to Mr. Spencer, its president. The following are statements contained in said letters:

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