Buckingham v. Orr

• Citation: 6 Colo. 587
• Parties: BUCKINGHAM v. ORR.
• Decision Date: 01 April 1883
• Court: Supreme Court of Colorado

6 Colo. 587

BUCKINGHAM v. ORR.

Supreme Court of Colorado

April, 1883

Error to Circuit Court of Weld County.

THE case is stated in the opinion.

Messrs HAYNES, DUNNING and HAYNES, for plaintiff in error.

Mr. J M. FREEMAN, MR. THOMAS GEORGE and Messrs. MAXWELL and PHELPS for defendant in error.

HELM J.

Suit was brought in this case to recover the balance due upon the following instruments of writing:

'$150.

GREELEY COL., May 1, 1873.

'Ninety days after date I promise to pay to the order of Emerson, West & Buckingham, $150, with interest at two per cent. per month from date until due, in advance, at the office of Emerson, West & Buckingham, Greeley, Colorado. If not paid when due, to bear interest at three per cent. a month until paid.

'And we hereby authorize and empower any attorney at law, at any time after this obligation becomes due, to appear for us before any court in Colorado or elsewhere, and waive the issuing and service of process, and confess judgment against us and in favor of the payee above named, or assigns, for the said sum and interest and costs, and thereupon to release all error and waive all right and benefit of a second trial or appeal in our behalf.

'Secured by trust deed.

[SEAL.]

'Due August 1, 1873.

[SEAL.]

'JAMES H. ORR [SEAL.]'

'$350.

GREELEY, COL., May 4, 1871.

'One year after date I promise to pay to the order of Emerson, West & Buckingham, $350, at the office of Emerson, West & Buckingham, Greeley, Colorado. If not paid when due, to bear interest at the rate of three per cent. a month until paid, and two per cent. per month from date until due, monthly in advance.

'And we hereby authorize and empower any attorney at law, at any time after this obligation becomes due, to appear for us before any court of record in Colorado or elsewhere, and waive the issuing and service of process, and confess judgment against us, and in favor of the payee above named, or assigns, for the said sum, interest and costs, and thereupon to release all error and waive all right and benefit of a second trial or appeal in our behalf.

'Secured by deed of trust duly stamped.

[SEAL.]

'Due May 4, 1871.

[SEAL.]

'JAMES H. ORR. [SEAL.]'

We cannot agree with counsel for defendant in error that these instruments are specialties or obligations under seal. They were written upon printed blanks; in each of these blanks, opposite the signature of the maker, the word 'seal' was printed three times in printed brackets; but aside from this bare fact there is nothing either on the face of the writings, or elsewhere in the evidence, which indicates an intention to execute sealed obligations. On the contrary they are expressly termed promissory notes by the parties to the transaction in the trust deeds admitted in evidence; these deeds are mentioned in the writings themselves; they were executed at the same time, and conveyed property in trust to secure the payment of the sums of money evidenced by the instruments. The intention of the parties at the time of the transaction to execute and deliver promissory notes is too clear to admit of doubt; and we would be doing violence to the first rule of construction of contracts were we to call them anything else.

One of the defenses relied upon is a bar by the statute of limitations. The complaint sets out various payments of principal and interest upon the notes, and shows that the last of such payments upon each was within six years next preceding the commencement of the action. The answer alleges that 'no cause of action accrued on said writings within six years next before the bringing of suit.' There is no specific denial in the replication of this averment in the answer, and defendant in error contends that therefore the plea is admitted, and judgment should have been given in his favor.

A correct determination of the question of pleading presented involves necessarily a consideration of the effect under the statute of limitations upon the original contract and cause of action of part payments of the principal or interest specified in a promissory note.

Different views have been expressed by learned jurists upon this question. But the generally recognized doctrine now is, that such payments, without any accompanying declarations or circumstances limiting their effect, whether made before or after the bar of the statute has attached, are, when found by the jury, acknowledgments of the obligation, from which, he actions upon simple contracts, the law infers a new promise to pay; the old demand and the moral obligation to pay the same constitute the consideration which supports this new promise. But the new contract created thereby is, in reality, the foundation of the action. The original note or contract is still set out in the complaint, but the object in so doing is to show the inducement or consideration for the new promise and also the terms and conditions of the new contract.

The bar by the statute is unquestionably a special privilege of which the defendant may or may not avail himself. And formerly the suit was always brought upon the original cause of action, defendant pleaded the statute, and plaintiff replied the new promise; but we think this practice has now given way to a more logical one, particularly in states which have adopted the code system of procedure.

The action being upon the new promise, if the plaintiff merely declares upon the old contract, the bar appearing in his complaint, and states no facts from which a new promise should be implied, defendant may plead the statute by a special demurrer. Smith v. Hall et al. 19 Cal. 85; Hexter v. Clifford, 5 Col. 168.

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