Bush v. Stowell

Citation71 Pa. 208
CourtUnited States State Supreme Court of Pennsylvania
Decision Date21 March 1872
PartiesBush <I>versus</I> Stowell <I>et al.</I>

Before THOMPSON, C. J., SHARSWOOD and WILLIAMS, JJ. AGNEW, J., at Nisi Prius

Error to the Court of Common Pleas of Tioga county: Of January Term 1871, No. 382.

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J. W. Maynard (with whom were F. E. Smith and M. Seymour), for plaintiff in error.—Until all the instalments were due, the plaintiff had not a complete cause of action: Comyn on Contracts 79; Act of March 27th 1713, § 1; 1 Sm. L. 76; 2 Br. Purd. 930, pl. 18; Carlon v. Kenealy, 12 M. & W. 139; 2 Pars. on Notes 644. The payment made within six years avoids the bar as to all: Burr v. Burr, 2 Casey 284; Balliet v. Fink, 4 Id. 266; Huff v. Richardson, 7 Harris 388; Suter v. Sheeler, 10 Id. 308; Whitcomb v. Whiting, Douglas 629; Jackson v. Fairbank, 2 H. Bl. 340. As to answer to defendants' 6th point, they cited Levy v. Cadet, 17 S. & R. 126; 1 Selwyn's N. P. 110; Danforth v. Culver, 11 Johns. R. 146; Lawrence v. Hopkins, 13 Id. 288. The latter part of the verdict was beyond the authority of the jury, and therefore surplusage: 7 Bac. Abr. 4, 16, 21; Taylor v. Willes, Cro. Car. 219; Inkersalls v. Samms, Id. 219; Cavene v. McMichael, 8 S. & R. 441; Eve v. Wright, Cro. Car. 75.

H. Sherwood, for defendants in error.—Coleman v. Fobes, 10 Harris 156.

The opinion of the court was delivered, March 21st 1872, by SHARSWOOD, J.

Lord Coke announced the distinction between actions of debt and of covenant or assumpsit upon an agreement to pay a sum of money by instalments, which has been recognised and followed since: "If a man be bound in a bond or by contract to another to pay a hundred pounds at five several days, he shall not have an action of debt before the last day be passed." "But if a man be bound in a recognisance to pay a hundred pounds at five several days, presently after the first day of payment he shall have execution upon recognisance for that sum, and shall not tarry till the last be past, for that it is in the nature of several judgments." "And so it is of a covenant or promise, after the first default an action of covenant or an action upon the case doth lie, for they are several in their nature:" Co. Litt. 292 b. Lord Loughborough reviewed all the law on this subject in Rudder v. Price, 1 H. Bl. 547, in which it was held that an action of debt will not lie on a promissory note, payable by instalments, till the last day of payment be past. He shows that prior to the case of Cooke v. Whorwood, 2 Saund. 337, it was the uniform course where an action of assumpsit was brought before all the instalments were due, to allow a recovery in damages for those still to accrue and come due, upon the notion that after a judgment on the contract no further recovery could be had: Beckwith v. Nott, Cro. Jac. 504; Peck v. Ambler, Dyer 113 and note; Milles v. Milles, Cro. Car. 241. But in Cooke v. Whorwood, which was assumpsit to perform an award to pay money in instalments, it was objected that all the days of payment were not past; but the Court of King's Bench, Sir Matthew Hale being then Chief Justice, was clear that the action might be brought for such money only as was due at the time of bringing the action, and the plaintiff could recover damages accordingly; and when another sum of the money awarded should become due, the plaintiff might commence a new action for that also, and so toties quoties. The law must be now considered as settled in conformity to this doctrine: Tucker v. Randall, 2 Mass. 283; Greenleaf v. Kellogg, Id. 568; Cooley v. Rose, 3 Id. 221.

If then the plaintiff could have maintained a suit for the first instalment in this case immediately after it fell due, his cause of action then accrued, and the Statute of Limitations began to run. It is unnecessary to inquire what the law would have been if this had been an action of debt, and the plea actio non accrevit infra sex annos; for, as we have seen, an action of debt could not have been maintained on this promissory note until after all the instalments had fallen due. But being assumpsit, there would seem to be no question that, as to the first instalment, the action was barred: Burnham v. Brown, 23 Me. 400; 2 Pars. on Cont. 373.

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23 cases
  • Canfield v. Statoil U.S. Onshore Props. Inc., CIVIL ACTION NO. 3:16-0085
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 22, 2017
    ...a contract is divisible, such as an installment contract, the limitations period begins to run at each new breach. See Bush v. Stowell, 71 Pa. 208, 212 (1872); 14 Samuel Williston, A Treatise on the Law of Contracts §45:20 (Richard A. Lord ed., 4th ed. 1990) (hereinafter Williston on Contra......
  • McCarty v. Goodsman
    • United States
    • United States State Supreme Court of North Dakota
    • January 17, 1918
    ......New York, 28. Hun, 115; Pelton v. Bemis, 44 Ohio St. 51, 4 N.E. 714; Adelbert v. Toledo, 5 Ohio S. & C. P. Dec. 14,. 3 Ohio N. P. 15; Bush v. Stowell, 71 Pa. 208, 10 Am. Rep. 694; Overton v. Tracey, 14 Serg. & R. 311;. Miles v. Kelly (Civ. App. 1894) 25 S.W. 724;. Morrill v. ......
  • Cowhick v. Shingle
    • United States
    • United States State Supreme Court of Wyoming
    • September 21, 1894
    ...v. Lefavorer, 2 Blackf., 373; Steele v. Sauder, 20 Kans., 38; Exeter B'k v. Sullivan, 6 N.H. 124; Coleman v. Fobes, 22 Pa. 156; Bush v. Stewell, 71 Pa. 208; Smith Ludlow, 6 John., 267; Van Keuren v. Parmelee, 2 N.Y. 523; Shoemaker v. Benedict, 11 N.Y. 176; 91 id., 203; 89 id., 456; 24 id., ......
  • Bryant v. Bryant
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 7, 1929
    ...bind two of the defendants in the absence of ratification, and, therefore, the present joint action against all three must fall: Bush v. Stowell, 71 Pa. 208; Shiffer Mosier, 225 Pa. 552. "In consideration of the payment" made January 15, 1925, by Mary H. Bryant, the widow, the plaintiff agr......
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