Borden v. Fletcher's Estate

• Decision Date: 24 June 1902
• Citation: 91 N.W. 145,131 Mich. 220
• Parties: BORDEN v. FLETCHER'S ESTATE.
• Court: Michigan Supreme Court

91 N.W. 145

131 Mich. 220

BORDEN v. FLETCHER'S ESTATE.

Supreme Court of Michigan

June 24, 1902

Error to circuit court, Kent county; Alfred Wolcott, Judge.

Action by Eliza A. Borden, by her guardian, Frances B. Eby, against the estate of Niram A. Fletcher. From a judgment in favor of defendant, plaintiff brings error. Reversed.

H. B. Fallass, for appellant.

Knappen Kleinhans & Knappen, for appellee.

HOOKER C.J.

The appellant presented a claim against the estate of Niram A Fletcher, deceased. It was based on a promissory note for $2,500, with interest at 8 per cent., dated December 29 1881, due two years after date, and signed 'Simonds &amp Fletcher.' A number of unsigned indorsements of payments were written on its back; also the following: 'Feb. 1, '87. I consent to any extension of time which may be given to O. H. Simonds on the within note. N. A. Fletcher.' The defendant answered, among other things, that the note was barred by the statute of limitations, and the probate court so held, as did the circuit court upon appeal, a verdict being directed for the defendant. Plaintiff has taken a writ of error.

Five points are raised by the appellant's counsel, viz.: First. Was Mr. Fletcher a party to the payments made, and within six years? Second. Did Mr. Fletcher acknowledge the debt in writing within six years of this decease, and within the meaning of the statute of limitations of the state of Michigan? Third. Was the term 'extension,' used by Mr. Fletcher on the back of the note, intended to mean indulgence, and intended for an indefinite length of time? Fourth. Were the statements of Mr. Fletcher to Mr. Sessions that he was 'as much holden as he possibly could be' of such a nature that it would operate as a fraud to hold them to have been false? In other words, is Mr. Fletcher estopped from denying that he told Mr. Sessions the truth? Fifth. After all parties knew of Mr. Fletcher's suretyship, did he remain a joint maker within the meaning of the statute, so that a payment by the principal would not renew the paper as to him? For a better understanding of the several points, we will state the facts in connection with the discussion of the questions raised. The note in question was given when Simonds and Fletcher were in copartnership. Subsequently, they dissolved their copartnership, and Simonds left the state. There seems to be no doubt that, as between them, it was afterwards the duty of Simonds to pay the note, and that this was understood by the payee. Counsel for the plaintiff states in his brief: 'Now Mr. Fletcher was a party to this note, and was a surety after the dissolution.' The note became due on January 1, 1883, and the statute ran against it in six years, i. e., January 1, 1889, except as it may have been affected: First, by Simonds' nonresidence; second, by payments; third, by new promises.

The record is not very clear as to the circumstances of the various payments; yet counsel seem to concede that they were made as indorsed on the note, and that Simonds furnished the money paid in each instance. Whatever the rule may have been at common law (see Mainzinger v. Mohr, 41 Mich. 687, 3 N.W. 183), our statute has provided that no joint contractor shall lose the benefit of the statute of limitations, so as to be chargeable, by reason only of any payment made by another joint contract. Comp. Laws, � 9745. And if it should be claimed that payment by one copartner would bind another, upon the ground of his agency growing out of the copartnership relation, it could not apply here, under our statute, because of the termination of the agency by the dissolution of the copartnership. 13 Am. & Eng. Enc. Law (1st Ed.) 761, and authorities cited.

It is contended, however, that Fletcher was a party to such payments in a way and to a degree that makes him liable. The theory upon which a part payment arrests the running of the statute is that it implies a new promise to pay, and a payment made under circumstances inconsistent with such an inference is not effective. See Wood, Lim. � 97, and notes. In Mainzinger v. Mohr, 41 Mich. 687, 3 N.W. 183, the statute is construed, and the doctrine stated that the statute requires a new promise, and that it cannot be implied from the act of one who has not authority to make the express promise. In that case an undisclosed surety, who was a joint maker, went with the principal to the creditor, where the money was paid by the principal, under circumstances which justified the creditor in understanding such payment to be the act of both and treating it as a joint act, but the case does not negative the general rule that the new promise must be naturally inferable from the circumstances of the payment, a doctrine that has since been recognized in the cases of Insurance Co. v. Elwell, 111 Mich. 689, 70 N.W. 334, and Patterson v. Collier, 113 Mich. 12, 71 N.W. 327, 67 Am. St. Rep. 440.

Several letters which passed between Fletcher and Simonds were introduced at the trial, and it is claimed that these contain evidence that the payments were made under circumstances which implied a new promise by Fletcher. These letters were usually written either at the request of the payee, or after demand of payment made to Fletcher by him. It does not appear that any of these letters were written to the payee, or that he ever saw them. One written by Fletcher to Simonds on February 6, 1885, states that 'Borden has been bothering me about the interest on your note,' and states that 'if he had any Simonds & Fletcher funds on hand he would pay it.' On February 9, 1886, he wrote 'Mr. Borden has been in a great many times lately, urging me to write to you, asking that something be paid on your note, and I have delayed doing so until now, and I could not put him off any longer.' On December 11, 1888, Simonds wrote Borden as follows: 'Duluth, Minn., Dec. 11th, 1888. Andrew Borden, Jefferson Ave., Grand Rapids, Mich.--Dear Sir: I understand Fletcher paid you $500 on my account. If so, please write me, giving date, and say that it is indorsed on my note.' In answer to this Mr. Fletcher wrote as follows: 'Dec. 17th, 1888. Dear Omar: Mr. Borden brought your letter to him, and asked me to answer it. I paid the $500 to him on the 3d day of December, and indorsed the amount on the note myself. He seems to be in very good humor, and wanted me to send you his kindest regards, and said that he wished you much prosperity.' The following is an extract from a letter written by Fletcher to Simonds on January 1, 1891: 'Mr. Borden was in here about two weeks ago, and asked me to write you requesting you to send him some money. He did not name the amount. I promised to do it, but forgot it. He was in to see me again to-day, to know what reply you had made, and I told him frankly that I had forgotten to write you at all, but that I would be sure to write you to-day. I do not think that he feels at all uneasy, or that he cares for any great amount. If it is not convenient for you to pay him any just now, I believe if you should write him a letter to that effect, he would say to let the matter run.' On June 15, 1891, Fletcher wrote: 'Dear Omar: I inclose Beckwith's computation on the Borden note. He says that he found a mistake in the computation of interest made in February, 1886, in which a mistake of over 100 against you was made. He thinks that this computation is now right, but you have the figures, and can go over it and satisfy yourself about it;' and on December 16th he wrote the following: 'Dear Omar: Andrew Borden called on me to-day, and said that he expected you to send him a new note for amount his due after you received the computation which Mr. Beckwith made and which I sent you. He is anxious to get it, and wanted me to write you at once.' On October 22, 1891, Simonds sent note to Fletcher as requested, and Fletcher replied on October 24th, as follows: 'Dear Omar: I have received your letter of Oct. 22d, with note for $1,077.96 for Andrew Borden, and I will deliver it to him. I do not see why you made it draw eight per cent. interest, because I think he would have been willing to have let you have it at seven per cent.' On March 31, 1892, Fletcher wrote as follows: 'Dear Omar: Since you sent me a note last summer to take up Borden's old note, I have never met him in the office until this morning. You will remember that you sent me one bearing 8 per cent. interest, and that I asked you to send another bearing 7 per cent., as I thought he would be satisfied with that. It seems that I kept them both. I now cancel and return them to you. Mr. Borden has figures from Mr. Beckwith showing much larger sum due than these notes call for, and I said to him that I would write to you and ask you to return me the computation which Beckwith made, and which I sent you. I will keep it here, and when you come we will make a new note for him, and take the old one up. Please send the computation, and write me telling me when you are likely to be here, and what the news in Duluth is.' The computation was returned on April 30, 1892. Fletcher wrote to Simonds that 'it was clear that Beckwith had made a mistake in his computation,' and sent data from which Simonds could make a computation, expressing the opinion that Borden's computation was correct. He added: 'Borden wants a new note, and he suggests that he would be glad to have some cash to reduce the amount. He insists on the note drawing 8 per cent. interest.' Fletcher also wrote the following: 'Sept. 15th, 1892. Dear Omar: Mr. Borden and his daughter came in here a few days ago, and asked me to write to you requesting a remittance of such amount as you could spare. I urged him to do the writing himself, but he seemed very anxious that the letter should go from me. I...