Gilbert v. Selleck

• Decision Date: 16 April 1919
• Court: Connecticut Supreme Court
• Parties: GILBERT v. SELLECK et al.

106 A. 439

93 Conn. 412

GILBERT v. SELLECK et al.

Supreme Court of Errors of Connecticut.

April 16, 1919

Appeal from Superior Court, Fairfield County; Donald T. Warner Judge.

Action by Henry A. Gilbert, as administrator of the estate of Isaac Selleck, deceased, against Benjamin S. Selleck and another as executors of the estate of Benjamin Selleck, deceased, and Emma S. David, as administratrix with the will annexed of the estate of Darius Selleck, deceased. Verdict for plaintiff and both defendants and plaintiff appeal. No error on either appeal.

Frederick H. Wiggin and James D. Dana, both of New Haven, for appellants Selleck.

Aaron T. Bates, of Danbury, for appellant David.

Howard W. Taylor and Henry C. Wilson, both of Danbury, for appellee.

WHEELER, J.

The substituted complaint rests this action upon a claimed breach of an oral contract of indemnity made and entered into November 8, 1883, between Isaac Selleck, plaintiff's intestate, and Benjamin and Darius Selleck, defendants' testators, by which Benjamin and Darius agreed that, in consideration of the transfer to them by Isaac of certain personal property which he claimed to own, they would indemnify and save Isaac and his father, William B. Selleck and his mother, Martha Selleck, from pecuniary liability by reason of certain notes made to Daniel Head and Head & Co. by William, and signed by Isaac and Martha for the accommodation of William. Subsequently Head obtained judgments in Wisconsin against Isaac, William, and Martha on these notes, and in August, 1900, action on these judgments was brought in Connecticut against Isaac and Martha, and judgment obtained, which Isaac paid on August 2, 1904.

The complaint further sets up that Isaac paid about $2,500 in contesting this action, and that these expenditures were made in good faith and were reasonable, and made in the belief that the notes had been paid by Benjamin and Darius, or had been purchased by them of Head. The plaintiff claimed to recover the payments made in satisfaction of the judgments and in contesting the action. The original parties to this action have deceased, and their representatives have entered their appearance. The claim of Isaac was duly presented to defendants' representatives.

The defendants' answer denies that Darius and Benjamin made the agreement of indemnity alleged, or that they incurred any obligation, aside from the contract of indemnity, to pay the Head notes, or that Isaac was the owner of this personal property, or that Isaac contested the suits in good faith, or expended the sums claimed, or that there is anything due the plaintiff; and the administrator of Darius denies the allegation of the second presentation of the claim by Isaac. The verdict of the jury settled these issues in favor of the plaintiff, and as a consequence all these controverted facts must have been found against the defendants.

The defendants pleaded two additional defenses: (1) That the action was barred by the statute of limitations; (2) that the agreement " to pay and indemnify" was set up in a prior suit, to which these defendants were privy, and the plaintiff is bound by the judgment therein. The instructions of the court as to these two defenses are the only questions pressed in argument by the defendants. The facts upon which the defense of res adjudicata rests will be taken up when we consider the charge upon this defense.

The defendants begin their argument by insisting that, because there was evidence that the alleged contract, if any, was " to pay and indemnify," they were entitled to the charge requested that such a contract was barred by the statute of limitations. We do not consider this question as being in the case. The trial court submitted the case to the jury " to determine primarily whether there was such a contract of indemnity as the plaintiff has set up in his complaint" as the consideration of the transfer of the personal property. It instructed the jury that, if they found the consideration of the transfer was merely a " contract to pay or to take care of" the Head notes, there would have been a breach of that agreement when the notes became due, and therefore the statute of limitations would be a complete defense. The pleadings specifically raise the issue between a contract of indemnity and one to pay.

Assuming that under the denial a contract " to pay and indemnify" might have been shown, we do not understand that the record indicates with clearness that evidence of such a contract was given. But, if such evidence had been received, it was without effect, in view of the manner in which the case was submitted to the jury. The verdict imported a finding by the jury of the contract of indemnity set up in the complaint; and our concern is not to speculate about a contract not found to have been made, but to determine the legal effect of the contract of indemnity found by the jury to have been made.

In the next place, the defendants argue that the statute of limitations, if the contract was one of mere indemnity, ran from the time when the Wisconsin judgments were issued and execution levied thereunder, and not from the date of payment of the judgment, as the court charged. Our law is the reverse of this. The statute of limitations begins to run, in the case of a mere promise of indemnity, from the time the promisee actually meets his liability under the promise, and not from the time his liability begins. The period of loss or damage determines when the statute begins to run. Graves v. Johnson, 48 Conn. 160, 164, 40 Am.Rep. 162; Lathrop v. Atwood, 21 Conn. 117, 124; Hall v. Thayer, 12 Metc. (Mass.) 130, 135; Bushwell on Limitations, § 181; 25 Cyc. p. 1093.

Since the plaintiff was obliged to bring his action upon his contract of indemnity within six years from August 2, 1904, the date when he paid the judgments, the statute would, in the absence of remedial legislation, have barred the action. General Statutes, § 6171, permits the plaintiff to begin a new action for the same cause at any time within one year after the determination of the original action, or after the reversal of the judgment in certain named classes of cases, where there has been a failure to prosecute the action within the time limited, and in order to avoid the injustice which would result from the strict enforcement of the statute.

The statute, as it was prior to 1913, did not cover with its saving grace a case such as the plaintiff's action. But the General Assembly, in Public Acts of 1913, chapter 206, and in Public Acts of 1915, chapter 191, by amendments to General Statutes 1902, § 1127, attempted to legislate so as to bring the plaintiff's action within the provisions of this remedial act. The parties concede that such was the legislative intent. We shall not stop to examine these Acts, since in Public Acts of 1917, chapter 53, the provisions of this section, as amended in 1913 and 1915, were made to apply " to any action brought to the Circuit Court of the United States for the District of Connecticut which was dismissed for want of jurisdiction." This section, with these several amendments, is now section 6171 of the General Statutes of 1918.

The case of Gilbert v. David, 235 U.S. 561, 35 Sup.Ct. 164, 59 L.Ed. 360, was such an action as the amendment of 1917 contemplated. The action was begun on November 5, 1904. On April 27, 1911, and October 5, 1911, defendants filed motions to dismiss for want of jurisdiction. The jury was impaneled on August 26, 1912, and at the conclusion of the testimony the court dismissed the suit upon the sole ground of want of jurisdiction. The order of dismissal was made over 11 months subsequent to the bringing of this action.

This action involved the same ground of action as the present case. By the express terms of the statute the administrator of the plaintiff in the original action was given authority to " commence a new action for the same cause at any time within one year after the determination of the original action." In its very terms the statute expressly gives to this plaintiff the right to maintain this action.

This remedial legislation is assailed as in violation of the Fourteenth Amendment to the Constitution of the United States, which declares that no state shall " deprive any person of life, liberty, or property without due process of law." The action it seeks to affect is based upon a contract of indemnity to recover for the violation of an implied promise to pay money. " The statute of limitations does not destroy the debt; it merely takes away the remedy." After its bar has operated, the debtor may waive it. He may make a new promise to pay,...