Billmeyer v. Evans & Rodenbaugh

• Decision Date: 27 November 1861
• Citation: 40 Pa. 324
• Parties: Billmeyer <I>versus</I> Evans & Rodenbaugh.
• Court: Pennsylvania Supreme Court

40 Pa. 324

Billmeyer versus Evans & Rodenbaugh.

Supreme Court of Pennsylvania.

November 27, 1861.

ERROR to the Common Pleas of Union county.

Vangezer and Dill, for plaintiffs in error, argued that the waiver of the stay of execution was a constituent element of the contract between the parties, which the legislature were prohibited from impairing, by Art. 1, § 10, of the Constitution of the United States, and Art. 1, § 17, of the Constitution of Pennsylvania: citing McKinny v. Reeder, 6 Watts 34; Chadwick v. Moore, 8 W. & S. 49; Bronson v. Kinzel, 1 How. 311; McCracken v. Hayward, 2 Id. 605; 1 Kent's Com. 466.

G. F. Miller and Wm. Cameron, Jr., for defendants in error. —The judgment, single bill, which was "without stay of execution after day of payment," was not due at the passage of the stay law of 1861, and did not fall due until July 12th, 1861. If this clause had been omitted no one pretends that defendants would not be entitled to a stay under the Act of 1861, or under the Act of June 16th 1836. How can the insertion of this clause change the case? Laws suspending execution have often been sustained as constitutional: Chadwick v. Moore, 8 W. & S. 49; 3 Peters's Rep. 290; Taggert v. McGinn, 2 Harris 157; Evans v. Montgomery, 4 W. & S. 218; Barnet v. Barnet, 15 S. & R. 72; Mercer v. Watson, 1 Watts 356; Schenley v. Allegheny City, 1 Casey 128; E. & N. E. Railroad v. Casey, 2 Id. 300. The Act of 1861 makes the plaintiff amply secure, and does not impair the obligation of the contract. It operates on the remedy by giving the debtor a little more time, while it secures the creditor.

The opinion of the court was delivered, November 27th 1861, by WOODWARD, J.

When the defendants became the debtors of the plaintiff in $1000, the law of Pennsylvania entitled them, if freeholders, to a stay of execution, for one year, on any judgment that should be entered against them, to be computed from the first day of the term at which the suit may have been commenced. But when, on the 12th day of July 1860, they signed a sealed bill, they authorized judgment to be entered against themselves for "the aforesaid sum with interest, costs of suit, release of errors, and without stay of execution after the day of payment."

This was an express release or waiver, on sufficient consideration, of a personal, statutory privilege of the debtors. Without it the law would, of itself, have entered into and formed part of the contract, entitling them to a year's credit additional to the twelve months stipulated for on the face of the paper, and vesting the right in them as absolutely as it gave to the plaintiff the right to enforce the contract after such a stay. Because it was a personal right of the defendants they might release it, and having done so in terms, we regard the release as part of the obligation of the contract. The obligation of a contract consists of its binding force on the party who makes it. The defendants bound themselves to pay, twelve months after date of the sealed bill, without stay of execution. The stipulation for interest and costs was no more an obliging portion of the contract than this waiver of stay of execution. It was not merely a waiver of such stay as is given by the Act of 1836, or any other particular statute, but a simple, general waiver of all stay beyond the day of payment.

Such being the obligation of the contract when it was consummated, the question on the record is, whether the legislature could alter and impair it subsequently. The Act of 21st May 1861, entitled debtors to a year's stay of execution on certain conditions, and the proviso to the 1st section declares that the provisions of the act "shall extend to all judgments, or debts upon which stay of execution has been or may be waived by the debtor in any original obligation or contract upon which such judgment has been or may hereafter be obtained, or by any stipulation entered into at any time separate from aid obligation or contract."

This is a legislative imposition of a stay upon a contract, wherein the parties agreed there should be none. Is this clause of the act constitutional? Whilst the courts of this country, both state and federal, have expressed high regard for those constitutional provisions which forbid states to pass any law impairing the...