Cowhick v. Shingle

• Decision Date: 21 September 1894
• Citation: 37 P. 689,5 Wyo. 87
• Parties: COWHICK, ADMINISTRATOR, &c., v. SHINGLE, ET AL
• Court: Wyoming Supreme Court

37 P. 689

5 Wyo. 87

COWHICK, ADMINISTRATOR, &c., v. SHINGLE, ET AL

Supreme Court of Wyoming

September 21, 1894

ERROR to District Court for Laramie County. HON. RICHARD H. SCOTT Judge.

The facts in this case were stated by Mr. Justice Clark, as follows:

The plaintiff in error was plaintiff below. The action was brought in the court below to recover upon a promissory note made by the defendants to plaintiff's intestate, and which is as follows:

"$ 100.00. Cheyenne, Wyoming, January 3, 1888.

"One year after date we jointly and severally promise to pay to the order of John Y. Cowhick one hundred dollars, at the First National Bank of Cheyenne, for value received, waiving benefit of stay and exemption laws, and appraisal on sale before execution, with interest at 1 1-2 per cent. per month from date until paid. If this note is not paid at maturity the undersigned agree to pay expenses of collection including attorney's fees.

"JOHN K. SHINGLE,

"H ALTMAN."

It is alleged in the petition of plaintiff:

"That the time within which said note was due and payable has long since elapsed, and yet said note has not been paid, nor any part thereof, except interest thereon from the date of said note up to and including the first day of June, A. D. 1890 which said interest from the date of said note up to and including said first day of June, A. D. 1890, was paid to said John Y. Cowhick by said John K. Shingle without the knowledge or consent of Henry Altman, on said first day of June, A. D. 1890."

The defendant Shingle made default. The defendant Altman interposed a general demurrer to the petition, and for ground thereof relies upon the statute of limitations, which demurrer was sustained by the court below.

Plaintiff brings the case here, assigning as error:

1st. That the court erred in sustaining the demurrer of defendant Altman to plaintiff's petition.

2nd. That the court erred in rendering judgment in favor of defendant Altman.

The cause of action upon the note accrued on the 7th day of January, A. D. 1889, and this action was commenced on the 2nd day of February, A. D., 1894, more than five years after the cause of action accrued.

The sections of the statute relied upon are the following of the Revised Statutes of 1887:

"Sec. 2368. Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action accrues.

"Sec. 2369. Within five years an action upon a specialty or any agreement, contract or promise in writing." * * *

"Sec. 2381. When payment has been made upon any demand founded on contract or a written acknowledgment thereof, or promise to pay the same has been made and signed by the party to be charged an action may be brought thereon within the time herein limited, after such payment, acknowledgment or promise."

The foregoing statutory provisions have been in force in this state since June 1, 1886: prior to that time and since March 1, 1874, the code provision in force here which corresponds with Sec. 2381, supra, was Sec. 21, Ch. 13, Compiled Laws 1876. We quote the latter section as we shall have occasion hereinafter to refer to it. It was as follows:

"Sec. 21. In any case founded on contract where any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim or any promise to pay the same shall have been made, an action may be brought on such case within the period prescribed for the same, after such payment, acknowledgment or promise, but such acknowledgment or promise must be in writing, signed by the party to be charged thereby. "

Judgment affirmed.

R. W. Breckons, for plaintiff in error.

The rule, so far as common law is concerned, respecting the effect of a payment by one co-obligor upon the statute of limitations, has been laid down differently in the various states. In England, until altered by legislation, the rule was that payment by one was payment for all. (Whitcomb v. Whiting, 2 Douglas.) Where this rule has been followed in the United States the reasoning is more satisfactory than under the contrary doctrine. (Crass v. Allen, 12 S.Ct. R., 68; Bank v. Colton, 53 Wis. 31; Mainzinger v. Mohr, 41 Mich. 685; Quimby v. Putnam, 28 Me. 419; Sigourney v. Drury, 14 Pick. 387.)

H. Donzelmann, for defendants in error, maintained that a payment by one would not prevent the running of the statute as to a co-obligor, and cited the following authorities: (Brandram v. Wharton, 1 B. & A., 463; Wood on Lim., p. 605; Dickerson v. Turner, 12 Ind. 230; Vanders 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 v. 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., 317; Davis v. Mann, 43 Ill.App. 301; Lowther v. Chappell, 8 Ala. 353; Myatts v. Bell, 41 id., 222; Tate v. Clements, 16 Fla. 339; Steele v. Jennings, 1 McMullen (S. C.), 297; Walters v. Craft, 23 S.C. 578; Beloit v. Wynn, 7 Yerg., 534; Schindell v. Gatis, 46 Md. 604; Willoughby v. Irish, 35 Minn. 63; Mayberry v. Willoughby, 5 Neb. 368; Hance v. Hair, 25 O. St., 349; Marienthal v. Mosler, 16 O. St., 566.)

CLARK, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

CLARK, JUSTICE (after stating the facts):

It is the settled construction of our Code of Civil Procedure that "where it appears upon the face of the petition that the cause of action accrued at such a period that under the statute of limitations no action can be brought, the defendant may demur to the petition on the ground that the petition does not state facts sufficient to constitute a cause of action." Sturges et al. v. Burton et al., 8 Ohio St. 215.

It is clear that more than five years elapsed between the date the cause of action accrued upon the note and the commencement of the suit, and hence the demurrer of the defendant Altman was properly sustained by the court below, unless the payment of the interest by the defendant Shingle on the 1st day of June, 1890, had the effect of suspending the running of the statute in favor of the defendant Altman. Briefly stated, the sole remaining question for determination is: Does a partial payment by one of two parties jointly and severally liable upon a promissory note suspend the running of the statute in favor of the other?

Before proceeding to the consideration of our own statutes, so far as they bear upon this question, it may not be amiss to briefly look into the history of the law upon this subject.

The first statute in our system of jurisprudence which placed limitations upon personal actions was Ch. 16 of the 21st of James I, enacted in 1623. In the construction of this statute, and of statutes enacted at an early day, by several of the States of the Union, which were substantially like it, there was great diversity of opinion upon the question we have presented here. The leading case on this question in England is Whitcomb v. Whiting, Douglas 652, decided in 1781, where it was held by Lord Mansfield and his associates that "payment by one is payment for all, the one acting virtually as agent for the rest; and, in the same manner, an admission by one is an admission by all; and the law raises the promise to pay, when the debt is admitted to be due."

Willes, Justice, concurring in the views expressed by Lord Mansfield, further said: "The defendant has had the advantage of the partial payment, and, therefore must be bound by it."

This case seems to be wholly opposed in principle to the case of Haslerig v. Bland, 2 Vent. 151, decided many years before, but after the adoption of the statute of 21 James I. While the doctrine of Whitcomb v. Whiting was several times seriously questioned by eminent English judges, notably by Lord Ellenborough in Brandram v. Wharton, 1 Barn. &amp Ald. 463, it became the generally accepted rule in England, and was such until Parliament interfered in 1828, and, adopting what is known as Lord Tenterden's Act, declared among other things that no joint contractor should be in any manner affected by any written acknowledgment or promise made by their co-contractors, thus limiting the effect of written acknowledgments or new promises to the parties making them. This act, however, contained this proviso: "Provided, always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever." We cite this thus fully because it is urged upon us that this statute is in substance the same as our Sec. 2381, quoted in the statement of facts hereto appended, and inasmuch as the English courts after the adoption of the act gave the same effect to a partial payment by one of two or more joint obligors as was given in Whitcomb v. Whiting, that hence the cases so holding are authority for the proposition that our statute should be so construed as to make a payment by one obligor effective as to the others. I cannot assent to this contention because, considering the state of the law in England at the time of the adoption of Lord Tenterden's act, as declared by the courts there, it seems clear to my mind that the effect of the proviso in that act was to leave the legal effect of a payment made by "any person whatsoever" just exactly what it had been held by the courts to have been; in fact it might be very strongly urged that the proviso was in effect a legislative affirmation of the rule previously established by the courts, and such in effect seems to have been the view taken by the court in Wyatt v. Hodson, 8 Bing. 309, and by Chief Justice Shaw in Sigourney v. Drury, 31 Mass. 387. By this act of...