Fleming v. Fleming

• Decision Date: 27 November 1890
• Citation: 12 S.E. 257,33 S.C. 505
• Parties: FLEMING v. FLEMING.
• Court: South Carolina Supreme Court

12 S.E. 257

33 S.C. 505

FLEMING v. FLEMING.

Supreme Court of South Carolina

November 27, 1890

Appeal from common pleas circuit court of Laurens county; IZLAR Judge.

W. H Martin, for appellant.

Johnson & Richey, for respondent.

MCIVER J.

The plaintiff, by his complaint, alleges: (1) That on the 1st day of February, 1877, the defendant made his note in writing under seal, whereby he promised to pay, one day after the said date, to the order of J. H. Fleming, with interest at 10 percent., $374.50. (2) "That the said note is past due, and no part thereof has been paid, except the following sums, to-wit: One dollar January 22, 1883; two hundred dollars May 11, 1883 fifty dollars May 10, 1884; fifty dollars April 2, 1885; and three dollars November 5, 1886." (3) That said J. H. Fleming died intestate 25th of April, 1882. (4) That on the 3d of July, 1882, letters of administration on the estate of said J. H. Fleming were duly granted to the plaintiff, who thereupon duly qualified, and entered upon the discharge of his duties as such administrator. (5) That plaintiff, as such administrator, is the legal owner and holder of said note. Then follows the demand for judgment in the usual form. To this complaint the defendant answered as follows: "(1) He alleges that he has no knowledge or information sufficient to form a belief as to the allegations of paragraph 11 of plaintiff's complaint. (2) He alleges that plaintiff's cause of action accrued more than six years next preceding the commencement of this action, wherefore defendant asks that the complaint be dismissed, with costs." It is stated in the case that the action was commenced on the 17th of January, 1889, which was considerably more than six years after the plaintiff's cause of action, if the note be regarded as such, has accrued. At the trial, the plaintiff having offered the note in evidence proposed to prove the several payments indorsed thereon, to which defendant's counsel objected, saying that it was apparent that the action on the note was barred by the statute of limitations, and that he objected to his proving payments as a new cause of action, which was not set out in the complaint. The objection was overruled, and the plaintiff proceeded with his evidence tending to show that the several payments mentioned in the complaint were made by the defendant, and closed his case. Defendant offered no testimony, and the jury were instructed that, if a note was given in 1877, "it will go out of date in six years; unless there is some acknowledgment by the maker of the note as to its validity, it goes out of effect in that time. It does not matter whether it had a seal to it, or had not. I charge you that any payment upon that note, indorsed upon it, would keep the note alive, and continue it in force, and, if six years has not elapsed since the last payment made on the note, then the statute of limitations is no bar to the plaintiff's recovery, and that he is entitled to recover upon the note the amount of the note, less these payments upon it, with interest at the rate of ten per cent., as stated in the note." The jury having rendered a verdict for the plaintiff, and judgment having been entered thereon, defendant appeals upon grounds which allege the following errors: (1) "In admitting in evidence the payments indorsed on the note, upon which this action is founded;" (2) in instructing the jury that, "if six years has not elapsed since the last payment made on the note, then the statute of limitations is no bar to the plaintiff's recovery;" (3) in instructing the jury "that plaintiff is entitled to recover the amount of the note, less the payments, with interest at the rate of ten per cent." The plaintiff's counsel has also given notice that he will insist upon sustaining the judgment appealed from upon the following grounds: "(1) Because no part of plaintiff's complaint was denied; (2) because the statute of limitations was not sufficiently pleaded by the defendant to avail himself thereof."

It must now be regarded as the settled law of this state that where an action is brought to recover a sum of money originally secured by a note, and the same is not commenced within the time prescribed by the statute of limitations, no recovery can be had on the note as the cause of action, if the statute be properly pleaded, for the right of action on the note is barred and gone forever; but if it is sought to avoid the bar of the statute in such a case by some subsequent promise either express or implied, the action must be upon such subsequent promise as a new cause of action, a consideration of which may be furnished by the original liability, either legal or moral, as the case may be, upon the original note. Walters v. Kraft, 23 S.C. 578; Dickson v. Gourdin, 29 S.C. 343, 7 S.E. Rep. 510, and the cases cited in those two cases. This being so, the practical inquiry in the present case is whether the action is upon the note set out in the first paragraph of the complaint, or upon some subsequent promise implied from the payments mentioned in the second paragraph. It seems to us clear that the action is based upon the note alone, and therefore subject to the bar of the statute. There is no allegation in the complaint which, even by the most liberal construction, can be regarded as setting up any subsequent promise as the cause of action. Indeed the very manner in which the payments relied upon, as implying a new promise, are stated shows conclusively that they were stated not for the purpose of alleging a subsequent promise to pay the sum of money originally secured by the note, but simply for the purpose of indicating the amount really due on the note; and this view is confirmed by...