Coleman v. Fobes

• Decision Date: 01 October 1853
• Citation: 22 Pa. 156
• Parties: Coleman versus Fobes.
• Court: Pennsylvania Supreme Court

22 Pa. 156

Coleman versus Fobes.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of M'Kean county.

Scofield, for plaintiffs in error.—The endorsement of 18th January,

1840, made by Sartwell, was not sufficient to avoid the statute in an action against Coleman and Sartwell. As between mere principal and surety there is no such relation as makes the act or admission of one evidence against the other, who pleads the statute. One joint debtor cannot make a promise to affect the other debtor, so as to take the case out of the statute of limitations: 2 Comstock's N. Y. Rep. 523. The principle there decided is, that one joint debtor is not the agent for the other.

In the case of a partnership after its dissolution, one partner cannot by his acknowledgment revive a partnership debt so as to deprive the other partner of the benefit of the statute of limitations: Levy v. Cadet, 17 Ser. & R. 126; Searight v. Craighead and Ege, 1 Pa. Rep. 135 et seq. One of the partners cannot enter into a new contract or engagement for his associates, nor bind them by a new promise, and if one acknowledges an account it will not affect the other: Per BELL, J., Schoneman v. Fegley, 7 Barr 438. After dissolution the several members of the firm have the power to settle and liquidate claims, and are agents for each other in winding up the affairs; and if with this general power, the acknowledgement of an account by one will not affect the other, it is respectfully submitted that, for greater reason, the acknowledgment of a surety will not affect the principal, so as to defeat, as to him, the plea of the statute.

In the case of Zent's Executors v. Heart & Eyster, 8 Barr 337, the payments, by which constructive acknowledgment of the debt was inferred, were made by the principal; in the present case they are made by the person who appears on the face of the instrument as a surety.

The right of action on the note was not barred by the statute of limitations at the time of the endorsement by Sartwell, and Sartwell and Coleman were at that time under a legal obligation to pay it; and without some consideration, which is not alleged or pretended, the new promise inferred from the endorsement is a mere nudum pactum, and no cause of action can arise or be derived from it: Case v. Cushman, 1 Barr 246. This doctrine should control an attempt to charge co-debtors on a subsequent acknowledgment of one.

Brown, for defendant.—That the defendants are joint contractors is shown by Craddock v. Armor, 10 Watts 258, in which it is ruled that the annexation of the words "surety for the fulfilment of the above" to the name of the joint promissor in a note, will not change his character of promissor to that of guarantor, but that he was jointly liable in the same suit with the other promissors. The case of Whitcomb v. Whiting, Douglas 652, directly decided that the admission or acknowledgment by one joint maker of a note takes the case out of the statute as to the others; and that doctrine seems now to be firmly established in England and most of the United States.

Zent's Executors v. Heart and Eyster, 8 Barr 337, rules this case. That was an action upon a joint and several promissory note of a principal and surety in which defendants severally pleaded non assumpsit infra sex annos. The principal had paid the interest regularly within six years as it accrued on the note, and it was held that such payments by the principal were constructive acknowledgments of the debt by both him and the surety, and as such operated as a new promise by both to pay according to the terms of the note. The Court say that the act of one joint contractor is the act of the other, if performed while their responsibility remained the same as at first. This doctrine is directly opposed to 2 Comstock 523, relied on by plaintiff. In the case of Levy v. Cadet, cited contrà, it is decided that one partner can by his acknowledgment take the case out of the statute as to the others, if made during the existence of the partnership; or in the language of the Chief Justice in 8 Barr 337, "while their responsibility remained the same as at first." Case v. Cushman was doubted in Morgan v. Walton, 4 Barr 322, and overruled in Forney v. Benedict, 5 Barr 225. (See also 9 Barr 259.)

The opinion of the Court was delivered by LOWRIE, J.

Coleman and Sartwell (the latter as surety) gave their joint promissory note to Fobes, and within six years a small payment was made by Sartwell, and six years after the maturity of the note, suit is brought, and the defendants rely on the statute of limitations. The Court below ruled that the payment of one removed the bar of the statute as to both. Is this right? It is supported by Zent's Executor v. Heart, 8 State Rep. 337, which is founded on English authorities; but which is certainly inconsistent with the principles applied in this state to the statute of limitations.

We cannot but regard the case of Whitcomb v. Whiting, Doug. 629, which declared that a payment by one joint debtor was a new promise by all, as being at the bottom of all the confusion that exists in the decisions, in England and in this country, on the subject of this statute in its relation to joint debtors. That case has often been questioned: 2 B. & C. 23; 1 B. & Ald. 467; and it is contrary to the earlier case of Bland v. Haselrig, 2 Vent. 151, and it is so regarded by Abbott, C. J., 2 Barn. & C. 23. It set an example which cannot be consistently followed out, because it violates the cardinal rule requiring a new promise, though it professes otherwise. It is, therefore, not surprising to find it carried to the extreme of sanctioning the judgment that the payment of part by the distribution of a bankrupt's estate, 2 H. Bl. 340, or by a bankrupt debtor, in fraud of his co-debtors, 3 Ad. & Ellis N. S. 839, will revive the debt as to the others; and that payment by a principal on the principal security will revive a collateral engagement by a surety: 11 Mees. & W. 329. In none of these cases is there anything like a new promise; for neither the party thus declared to be bound, nor any one constituted as his agent, had done any act from which a new promise by him could be inferred.

Burleigh v. Stott, 2 Barn. & C. 36, and several other modern English cases, 10 Id. 122, 2 Bing. 306, fully sustain Whitcomb v. Whiting. And because it seemed, in Atkins v. Tredgold, 2 Barn. & C. 23, and Slater v. Lawson, 1 B. & Ad. 396, to be carrying the precedent too far to decide that, where one of two debtors is dead, either the survivor or the administrator of the decedent could revive the debt against the other; therefore the distinction is attempted that their liability is severed by the death of one of them, and consequently the power of each over the other is gone. But this is an artificial distinction, depending merely on the form of the remedy, not attempted in the analogous case of Jackson v. Fairbank, 2 H. Bl. 340, and not at all affecting the substantial relation of the debtors to each other; a distinction, good enough perhaps for...