Carson v. Hunter

• Decision Date: 31 October 1870
• Citation: 46 Mo. 467
• Parties: JAMES A. CARSON, Defendant in Error, v. W. A. HUNTER, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 467

JAMES A. CARSON, Defendant in Error,

v.W. A. HUNTER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Second District Court.

Van Alen & Reefe, for plaintiff in error.

I. The statute (Rev. Stat. Arkansas, 527) works a discharge of the note everywhere. Whatever constitutes a good defense by the law of the place where the contract is made or is to be performed, is equally good in every other place where the question may be litigated. (2 Kent's Com. 574, 7th ed.; Goodman v. Monks, 8 Post, Ala., 84; Gordon v. Preston, Wright, Ohio, 341; Horton v. Hosmer, 16 Ohio, 145; Davis v. Minor, 1 How., Miss., 183; Baker v. Stonebreaker, 36 Mo. 338; Stephens v. St. Louis National Bank, 43 Mo. 335; Const. U. S., art. IV, § 1.) The statute of Arkansas differs from that of Missouri and most of the other States in this: that it bars all remedy after five years; i. e., actions shall be brought within five years, “and not after.” All the remedy being barred by the lex loci contractus, there is a virtual extinction of the right in Arkansas, which ought to be recognized in every other tribunal as of equal validity. (Le Roy v. Crowninshield, 2 Mason's C. C. 151; Goodman v. Monks, supra, and cases cited.)

II. The facts set up in the answer show most clearly a contract founded upon a breach of law, contrary to public policy, and there was, therefore, no valid consideration for the note in suit. (Griswold v. Waddington, 16 Johns. 486; Peltz v. Long, 40 Mo. 532.)

Perryman & Dinning, for defendant in error.

I. The statute of limitations of Arkansas simply affects the remedy, and does not extinguish the debt. (Baker v. Stonebreaker, 36 Mo. 338; Nash v. Tupper, 1 Cains, N. Y., 402; Ruggles v. Keeler, 3 Johns. Ch., N.Y., 263; Sto. Confl. Laws, 935, § 556; McElmoyle v. Cohen, 13 Pet. 312; 2 Kent, 11th ed., 599-601; Carpenter v. Wells, 21 Barb., N. Y., 593; Wood et al. v. Watkins et al., 17 Conn. 500; Broadhead v. Noyes, 9 Mo. 55; Dorsey v. Hardesty, id. 157; Minor v. Cardwell, 37 Mo. 350; Labadie v. Chouteau, id. 413; Decouche v. Savetier, 3 Johns. Ch. N. Y., 217; 4 Cow. 528, note and cases there cited.)

II. The answer of defendant did not disclose any legal defense to plaintiff's cause of action. The consideration for the note was good. (Phillips v. Evans, 38 Mo. 305.) Under the law of Missouri, the consideration for the note is good, and this court will presume the laws of Arkansas to be the same as ours. (Milly v. Smith, 2 Mo. 36; Charlotte v. Chouteau, 25 Mo. 465.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff brought his action upon a promissory note given him by defendant at Pocahontas, Arkansas, November 12, 1861, to which the maker sets up two defenses: first, the statute of limitations of Arkansas; second, illegality of consideration.

This suit was brought in Missouri, and we have nothing to do with the Arkansas act of limitation. The lex fori decides all questions pertaining to the remedy, and the statute given in evidence does not vary substantially from our own, except that the time is fixed at five instead of ten years. It is too well settled now to admit of question, that acts of limitation, unless they expressly discharge the debt, go to the remedy merely, and that none can be pleaded except those in force where the suit is brought. (King v. Lane, 7 Mo. 241; Sto. Confl. Laws, § 577 et seq., and all the authorities.)

It is claimed, and not without show of reason, that where, as in the case at bar, the term fixed by the statute had already expired before the pleader left the State in which the contract was made, it should be deemed to have been discharged, and that it can not be revived by removal to another State. Judge Story considers this point at length in Le Roy v. Crowninshield, 2 Mason, 151, and thinks the position founded in reason, although in deference to authority he decides against it. In Bulger v. Roach, 11 Pick. 36, the question came before the Supreme Court of Massachusetts, and the court denied the force of the distinction involved in it, and held that the general doctrine applied to “a case where both parties were subject to the jurisdiction of a foreign State, when the bar arising from its statutes of limitation attached.” Justice Shaw gives as a reason for making no distinction between cases where the statutory period had elapsed when the party left the foreign jurisdiction, and where it was still running, the fact that the time having begun to run would continue until completed, notwithstanding the parties might leave the jurisdiction. This is a good reason, though somewhat technical; but a better one, it seems to me, is suggested by the policy that dictates, and by the character of, acts of limitation. They are properly called statutes of repose. The State fulfills its duty to the citizen if a reasonable time is given to apply for the redress of wrongs. More than that encourages strife, by reviving controversies that had been suffered to sleep, and reviving them, too, after it may have become difficult to understand their true character. Each State must necessarily decide for itself what time is reasonable.

It is sometimes said that these acts raise an imperative presumption of payment or satisfaction; and if this were their theory, and if this presumption once attached, I do not see how it could be avoided by a change of domicile; and besides, it would seem in such case that the limitation could be shown in support of a plea of payment, etc. But when we consider these acts as declarations of the law-making power, fixing the period of time in which courts shall be open for the redress of grievances, it seems perfectly clear that the term prescribed by one State has no control whatever over that which may be fixed by another. If the State of Arkansas says that it will furnish and support tribunals to litigate claims growing out of bills and notes, five years and no more after the cause of action has accrued, it is no reason why Missouri may not determine upon a longer or shorter period. These acts of limitation do not assume that in a certain period liabilities will have been satisfied in fact, but they fix a reasonable period in which the law will aid parties in enforcing satisfaction; and if Missouri grants a longer time than Arkansas, it does not thereby revive a satisfied claim, but simply gives claimants greater opportunities to compel a debtor to do what he should have done without compulsion. This theory in regard to...