Campbell v. Baldwin
| Decision Date | 07 January 1881 |
| Citation | 130 Mass. 199 |
| Parties | George F. Campbell v. J. T. Baldwin |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 17, 1880
Suffolk. Contract to recover a balance due the plaintiff for work and materials furnished in painting two houses belonging to the defendant. Writ dated September 14, 1878. The defendant admitted the debt, and filed a declaration in set-off upon a witnessed promissory note, dated October 11 1870, signed by the plaintiff and his wife, payable in two years from June 9, 1870, to the order of Joseph C. Bates, and secured by a mortgage of real estate containing a power of sale. Answer, the statute of limitations. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, which appear in the opinion.
Judgment affirmed.
O. T Gray & W. C. Cogswell, (J. H. Appleton with them,) for the plaintiff.
W. E. L. Dillaway, for the defendant.
The statute of limitations is a bar to the note declared on in the defendant's declaration in set-off.
When, as in this case, the defendant relies on a claim by way of set-off to which the statute of limitations is alleged as a defence, the same rules prevail, and the limitation is to be applied in the same manner, as if an action had been commenced on the same demand at the time when the plaintiff's action was commenced. Gen. Sts. c. 130, § 18.
The cause of action upon the note in question accrued more than six years before the plaintiff's action was commenced; and the case is not within the provisions of the statute, which except "any action brought upon a promissory note signed in the presence of an attesting witness," because the action on the note by way of set-off is not "brought by the original payee or his executor or administrator." Gen. Sts. c. 155, §§ 1, 4.
The statute is, therefore, a defence to the note, unless the agreed facts show that the plaintiff has made such a payment thereon within the six years as avoids the statute. The note was secured by a mortgage of real estate containing a power of sale. Soon after the note and mortgage were executed, the plaintiff and his wife, being the mortgagors, conveyed the mortgaged estate to John Moyle and Thomas McLaren, who, as a part of the consideration, assumed and agreed to pay the mortgage note. Moyle and McLaren thereafterwards paid the interest upon the note up to June 9, 1874.
In June 1878, the defendant, being the assignee of the mortgage, duly sold the premises under the power contained in the mortgage for the sum of sixty dollars. Of this sum, after paying the expenses, there remained twenty dollars applicable to,...
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