Carr's Ex'r v. Robinson
| Decision Date | 07 October 1871 |
| Citation | 71 Ky. 269 |
| Parties | Carr's executor v. Robinson & Dudley. |
| Court | Kentucky Court of Appeals |
APPEAL FROM FAYETTE CIRCUIT COURT.
HUSTON & MULLIGAN, BRECKINRIDGE & BUCKNER, For Appellant,
Session Acts, 1828-29, page 85.
Angell & Ames on Corporations, section 110.
Smith's Mercantile Law, page 141.
Act of 2 and 3 William IV., chapter 115.
1 Smith's Leading Cases, part 2, page 888.
4 Hurlst. & Norm. 273, Goodman v. Cully.
4 Hurlst. & Norm. 377, Edwards v. Cully.
2 Younge & Collier, 676, Greenfell v. Girdlestone.
4 Sandford, 427, Bloodgood v. Bruen.
| 4 Selden, 362 | 4 Bibb, 246 |
1 Monroe, 209, Gore v. Beck.
2 Parsons on Contracts, 516, edition of 1864.
3 Parsons on Contracts, 103, edition of 1864.
2 Marshall, 286, Pollard v. Yoder.
3 Story's Reports, 336.
9 B Monroe, 44, Egbert v. McMichail.
8 B Monroe, 7, Graham v. Hunt.
6 Bush, 375, Hopkins, & c. v. Stout.
4 Metcalfe, 73, Chiles, & c. v. Monroe.
1 Bush, 140, Gibson v. Belcher.
2 Metcalfe, 292, Berry & Johnson v. Ransdall.
2 Bush, 231, Lockhart v. Yeiser & Co.
4 Bush, 538, Vandiver, & c. v. Hodge, adm'r.
6 Bingham, 258, Towler v. Chatterton.
| 7 Eng. Chancery, 341. | 7 Eng. Chancery, 88. |
2 Mylne & Keen, 221, Bradshaw v. Tasker.
1 Adol. & Ellis, 338, Freeman v. Moyes.
1 Duvall, 349, Thornton, & c. v. McGrath.
2 Duvall, 508, Woodcock v. Bowman.
1 Bush, 607, Pettit's adm'r v. Johnson.
4 Connecticut, 226, Goshen v. Stonington.
| 6 Connecticut, 58. | 7 Connecticut, 319, 551. |
| 3 Dallas, 386. | 2 Peters, 380. |
| 8 Peters, 88. | 7 Met. (Mass.) 389. |
| 3 Denio, 173. | 7 Watts, 300. |
| 11 Peters, 420. | 17 Howard, 610. |
| 16 Barbour, 188. | 10 Serg. & Rawle, 97. |
| 16 Serg. & Rawle, 35. | 16 B. Monroe, 296. |
| 18 B. Monroe, 389. | 18 B. Monroe, 781. |
10 Exchequer, 333, 341, Badger v. Arch.
10 B. Monroe, 155, Carson v. Osborn.
KINKEAD & BUCKNER, For Appellees,
CITED
Dev. & Batt. 70, Powell, administrator v. Guy.
Broom's Legal Maxims, page 238.
5 Bush, 579, Walker and wife v. Sayres and Hopkins.
3 Metcalfe, 68, Coleman v. Walker.
6 Bush, 375, Hopkins, & c. v. Stout.
1 American Leading Cases, 499.
5 Humphrey, 406, Rollman, adm'r v. Baker.
4 Monroe, 445, Jennings v. Anderson.
2 Blackstone."
The Kentucky Baptist Education Society instituted this action in the Fayette Circuit Court against A. K. Marshall, as the executor of the last will of Martha Carr, deceased, upon the following notes, viz.:
" On the 1st day of January, 1845, I promise to pay the trustees of the Kentucky Education Society one thousand dollars, value received, this 22d April, 1843."
This note has the following indorsement thereon: " If not paid I request indulgence. " The second note is as follows:
Both of these notes are signed by Martha Carr. There are two separate receipts executed to Mrs. Carr for thirty dollars each, paid by her as interest on this last note--the one dated 1st of September, 1857, and the other dated the 30th of June, 1859.
The executor pleads the statutes of limitation as a bar to any recovery upon the note for one thousand dollars; he also alleges that it was executed without any consideration whatever, and when executed it was agreed that it was to bear no interest.
As to the note for five hundred dollars, the executor alleges that it was signed upon the express contract that it was not to be paid until the death of Mrs. Carr, and was not to bear any interest until after her death; that through mistake she made two payments of interest thereon, of thirty dollars each, and is now entitled to a credit for these amounts on the principal, etc. Upon the issues thus formed the jury returned a verdict in favor of the appellees for the amount of the two notes with interest, and upon the five hundred dollar note interest to commence running from the 1st of September, 1857. The appellant's motion for a new trial having been overruled, the case is brought here for revision.
The appellees insist that the indorsement on the one thousand dollar note having been made by Mrs. Carr (as the proof shows), in which she asks indulgence, was the inducement for the appellees to prolong the collection of that note. The indorsement on the note was a request for indulgence, but we are inclined to the opinion that it was no such continued request as would estop the appellant from relying on the statute. This request was made at or about the time the note was executed, and there was no reason why suit could not have been instituted at any time afterward; and no more force should be attached to this indorsement than if the request had been verbally made when the note was signed. A mere request made for indulgence, either verbally or in writing, twenty years before the institution of the suit, is no reason for forbearance for such a length of time, and can not be relied on by the obligees in the note as having been made to lull them into security in order that the statute might be successfully pleaded.
There is no analogy between this case and the case of Walker and wife v. Sayres & Hopkins, 5 Bush, 579. The statement of McCalla that he supposed or that this request was the cause of the indulgence was incompetent; and in the absence of any proof showing that the indulgence was extended by reason of renewed requests by the decedent we think no importance should be attached to this indorsement. The paper purporting to be the will of Mrs. Carr was no evidence that the collection of this debt was postponed at her renewed solicitation and request. The contents of this paper, on the subject of this note, did not amount to such a promise as could take the case out of the statute, nor was it evidence of any other fact than that the note had been executed by her, and no such issue as this is made by the pleadings.
The admission of this paper as evidence to the jury had no doubt much weight with them when considering of their verdict, and, whether it did or not, should have been excluded from the jury. It should be regarded as a mere private memorandum referring to her benevolent action in making the donation, and not as any evidence of the creation of a new liability on her part.
The court, at the instance of counsel for appellees, gave the following instruction: " The plaintiffs ask the court to say to the jury that they ought to find for the plaintiffs the amount of the note for one thousand dollars, with interest from the 1st of January, 1845, if they believe from the evidence that the decedent, Martha Carr, within fifteen years next before the institution of this suit, recognized this...
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