Brisbin v. Farmer

• Decision Date: 01 January 1871
• Citation: 16 Minn. 187
• Parties: JOHN B. BRISBIN v. JOHN M. FARMER.
• Court: Minnesota Supreme Court

Page 187

16 Minn. 187

JOHN B. BRISBINv.

JOHN M. FARMER.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Ramsey county, denying a new trial.

Brisbin & Palmer, for appellant.

Swan & Bangs, for respondent.

RIPLEY, C. J.

This action was commenced on December 27, 1869, on a judgment recovered by Brisbin and one Guerin against Farmer, in the district court for Ramsey county, December 23, 1857, for $844.23, and in which said Guerin, in November, 1869, assigned his interest to the plaintiff.

Defendant pleaded the statute of limitations, and accord and satisfaction, substantially as follows: The complaint alleges that said judgment had been in no part paid or satisfied, except that in June, 1865, the defendant paid the sum of $275 on said judgment.

This allegation was denied, and the answer avers that in August, 1865, plaintiff and Guerin agreed to receive in satisfaction of said judgment the sum of $25 in money, and United States 7.30 bonds, equal in amount, in the principal thereof, to $250, which money and bonds were by agreement between the parties then paid by the defendant to, and received by the said judgment creditors in full satisfaction and discharge of, said judgment.

The complaint and answer refer to the same thing, viz., the delivery by defendant to plaintiff, August 31, 1865, of certain United States bonds, taken by plaintiff at $250, and of $25 in cash.

The jury returned a verdict for the defendant as follows: We, the jurors, find for the defendant on the ground that the claim is barred by the statute of limitations.

Plaintiff moved for a new trial; the grounds of the motion being that the verdict is against the evidence, and errors in law occurring at the trial and excepted to. This appeal is taken from the order of the court below denying the motion.

We are to take this verdict as a finding of the plea of accord and satisfaction against defendant, as well as that of the statute of limitations in his favor, consequently the evidence and rulings at the trial, and the instructions given and refused, need only be considered so far as they relate to the latter issue. As to this, the plaintiff requested the court to instruct the jury as follows:

"That the statute of limitations commenced to run on said judgment from the time the last payment was made thereon, and this action can be maintained if commenced within 10 years from the date of the last payment."

But the court refused so to charge, and instructed the jury that such payment, to save the operation of the statute, must be a part payment, and unaccompanied by any circumstances which repel the idea of an intention to pay the balance.

Plaintiff further requested the court to charge the jury "that under section 24 of chapter 60, Comp. St. p. 534, it is immaterial whether the agreement of the parties, or the law determines the effect to be given to a payment upon an existing contract; that if the law declares that a sum paid on such contract is a part payment thereof, the limitation shall commence from the time such last payment was made." But the court refused so to charge; to which instruction, as well as to the refusal to charge as aforesaid, the defendant duly excepted.

As the exceptions are all based primarily upon the theory that said section 24; c. 60, Comp. St., was applicable to the case, we will consider the instructions together.

And first, we think, the theory aforesaid is erroneous. In our judgment said statute is not applicable to this case.

It reads as follows: "Whenever any payment of principal or interest has been or shall be made upon an existing contract, whether it be a bill of exchange, bond, promissory note, or other evidence of indebtedness, if such payment be made after the same becomes due, the limitation shall commence from the time the last payment was made."

The Revision dropped this section. The provision of the General Statutes on this subject is as follows: "No acknowledgement or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of this chapter, unless the same is contained in some writing, signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest." Gen. St. c. 66, § 24.

If chapter 60, § 24, aforesaid, is still in force, so far as this case is concerned, it must be by virtue of the provision of Gen. St. c. 121, that the repeal of said statute shall not affect any right accruing, accrued, or established when the said General Statutes took effect.

In Whitaker v. Rice, 9 Minn. 13, (Gil. 1,) it is held that said section 24 refers only to payments made on contracts before the statute has run against them, and that such payment fixes a new date, from which the limitation of time for the commencement of actions thereon thereupon commences to run de novo; that is, that whereas on a note, for instance, till such payment, by section 6 of said act, a limitation of six years from maturity was imposed when such payment is made, the said limitation of six years becomes operative de novo on that contract, and prevents any interruption of the right of action, rather than continues or extends it.

The effect of this statute, then, applied to a judgment, would be, that no action could be commenced thereon after 10 years from the recovery thereof, or from the last payment made thereon prior to the expiration of said ten years.

The appellant contends that it follows from this construction that the latter limitation is as arbitrary as the first; wholly independent of the circumstances under which the payment is made; that the sole object of the law is to fix the date from which the computation is to begin in each case. If that be so, we cannot see how this case can be distinguished in principle from Holcombe v. Tracy, 2 Minn. 241, (Gil. 201.)

Before the Revised Statutes, the time for commencing actions on judgments was six years. By the Revised Statutes the time was changed to 10 years, and the said statutes repealed all previous laws, with the proviso that this should not affect any act done, or right accrued or established.

The court held in Holcombe v. Tracy that the Revised Statutes, and not the former law, was applicable to a judgment against which the six years had not run when the Revised Statutes went into effect; because "when a statute of limitations has once begun to run against a cause of action, any change or amendment of the law as to the time limited necessarily applies to such cause of action, subject to the restriction against impairing the obligation of contracts and to the right of a reasonable time after the passage of the act for the commencement of actions on such demands."

So, too, in Burwell v. Tullis, 12 Minn. 577, (Gil. 486,) and Cook v. Kendall, 13 Minn. 324, (Gil. 297,) this court held that the legislature has not the power to deny a remedy, or cut off an existing right of action; but, subject to this limitation, its right to enlarge or lessen the time, at least before the statute has barred a right of action, or to establish a limitation, cannot be questioned.

Up to the time that the General Statutes took effect, viz., July 31, 1866, plaintiff, (on his construction of said section 24,) had till August 31, 1875, to commence an action on this judgment. After they had gone into operation, unless said payment were evidence of a new promise, he would have only till December 23, 1867.

The power of the legislature thus to lessen the time is as unquestionable as that the General Statutes have that effect, unless the circumstances aforesaid, that under the law as it stood on the thirty-first of July, aforesaid, plaintiff's right of action would not be barred till August 31, 1875, was a right accruing, accrued, or established. Holcombe v. Tracy settles that it was not an accrued right, in the sense of this provision, and it is equally clear that it was not a right accruing.

In Darling v. Wells, 1 Cush. 508, a debt was contracted in 1832. The right of action then accrued, and the statute then in force began to run. In May, 1836, the Revised Statutes went into effect, by which it was provided that if, after the cause of action has accrued, the debtor shall be absent from and reside out of the state, the time of his absence shall not be taken as part of the time of limitation. The court held that this applied to debts which accrued before the Revised Statutes went into effect, provided the right of action was not then barred. "When the debt was contracted the defendant had no vested right in the statute of limitations, which could only affect the remedy of the creditor, and had no operation till the time of limitation had expired. So, when the Revised Statutes went into operation, the defendant had acquired no right to the statute bar, and his case was not within the exception of the repealing act respecting rights accruing or accrued." The exception is in language synonymous with that of our statute, chapter 121, § 4, aforesaid. If the foregoing reasoning be sound, as in our opinion it is, the fact that by the law in force when our General Statutes took effect plaintiff's right of action against Farmer would have been barred August 31, 1875, would not have brought the defendant within the exception as to rights accruing, so as to have prevented the legislature from enacting a limitation law, the effect of which would have been to have extended the time within which plaintiff might sue beyond said date. And if not, the plaintiff would most certainly not be within such exception in regard of the present statute, which lessens the time.

If Darling v. Wells had presented the case of a debt contracted under a law providing that such absences should not be counted, which law had been repealed before plaintiff's debt was barred, can there be any doubt that the supreme court of Massachusetts would have applied the same rule to the...