Gillingham v. Brown

• Citation: 178 Mass. 417,60 N.E. 122
• Parties: GILLINGHAM v. BROWN.
• Decision Date: 13 April 1901
• Court: United States State Supreme Judicial Court of Massachusetts

178 Mass. 417

60 N.E. 122

GILLINGHAM v. BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 13, 1901

COUNSEL

S. H. Tyng and Gwo. M. Hobbs, for plaintiff.

Samuel W. Clifford, for defendant.

OPINION

HAMMOND J.

This is an action upon a demand note dated October 22, 1872. At the trial the plaintiff, in order to meet the defense of the statute of limitations, proved that the defendant delivered to the agent of the plaintiff, in April, 1898, $5; and the chief question was whether this money was delivered in part payment of the note, and, if so, whether, under the circumstances, it had the effect of making the defendant liable to pay the remainder of the note at once, or only by installments. The plaintiff's evidence tended to show that in February 1898, the defendant orally agreed to pay the note in monthly installments of $10 each, the first installment to be paid on the 1st of the following month; that, the defendant failing to pay as promised, the plaintiff's sister, as his agent called upon the defendant, and demanded payment of the $10, for a payment 'on account of the note'; that the defendant said he could not pay $10, but would pay her $5, and did so, and the payment was indorsed on the note. The defendant admitted giving the agent the $5, but testified that 'it was an act of charity,' and that it was done 'to get rid of her,' and that in giving it he stated that it was not on account of the note, and he denied that he ever agreed to pay in monthly installments.

In this state of the evidence, the defendant asked the court to rule that if the jury should find that the defendant agreed to pay the note only in installments of $10 per month, and that the payment of the $5 was given and taken in pursuance thereof, the plaintiff could only recover the installments due to the date of the writ. The court declined so to rule, and instructed the jury, in substance, that if the defendant made this payment on account of the note, their verdict should be for the plaintiff for the amount of the note, and interest from the date of demand, after deducting the payments indorsed on the note. To the refusal to rule as above requested and to the ruling given the defendant excepted. The jury found for the plaintiff in the sum of $1,049.40.

The verdict shows that the jury found that the $5 was paid by the defendant on account of the note, and not as an act of charity, as he contended. But it does not settle the question whether it was paid in pursuance of an agreement to pay on installments, or upon the note generally, without reference to that agreement; and, since the evidence would warrant a finding either way on that question, it is plain that, if it was material, it should have been submitted to the jury.

The statute (21 Jac. I.) in which first appears a limitation as to the time of bringing personal actions, and upon which are modeled the various statutes of limitation in the United Stated, expressly provides that all such actions should be brought within the times therein prescribed, and it makes no mention of the effect of a new promise, acknowledgment, or part payment. In every form of action but that of assumpsit, the construction has been in unison with the express words of the statute, but, as to that action, the statute has had a varied experience in running the gauntlet of judicial exposition. There was early read into it a provision that in an action of assumpsit a promise of payment within six years prior to the action would avoid the statute, but that a confession, or simple acknowledgment, by the debtor that he owed the debt would not be sufficient. Dickson v. Thomson, 2 Show. 126. At a later period, however, it was held that an acknowledgment was evidence from which a jury might properly find a new promise to pay. Heyling v. Hastings, 1 Ld. Raym. 421, 1 Comyns, 54. Still later, Lord Mansfield said in Quantock v. England, 5 Burrows, 2628, that the statute did not destroy the debt, but only took away the remedy, and that, if the debt be older than the time limited for bringing the action, the debtor may waive this advantage, and in honesty he ought not to defend by such a plea, 'and the slightest word of acknowledgment would take the case out of the statute.' In Tanner v. Smart, 6 Barn. & C. 603, however, the pendulum swung the other way, and Lord Tenterden, C.J., after saying that there were undoubtedly authorities to the effect that the statute is founded on a presumption of payment, that whatever repels that presumption is an answer to the statute, that any acknowledgment which repels that presumption is in legal effect a promise to pay the debt, and that, though such acknowledgment is accompanied with only a conditional promise, or even a refusal to pay, the law considers the condition or refusal void, and the acknowledgment itself an unconditional answer to the statute, proceeds, in an able opinion, to say, in substance, that these cases are unsatisfactory and in conflict with some others, and that the true doctrine is that an acknowledgment can be an answer to the statute only upon the ground that it is an evidence of a new promise, and that while, upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay may and ought to be implied, yet, where a debtor guards his acknowledgment and accompanies it with a declaration to prevent any such implication, a promise to pay could not be raised by implication. This is a leading case in England on this subject.

In this country it has very generally been held that the statute of limitations is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of things may have been forgotten or may be incapable of explanation by reason of the loss of evidence that, if a new express promise be set up in answer to the statute, its terms ought to be clearly proved; and that if there be no express promise, but a promise is to be raised in law from the acknowledgment of the debtor, such an acknowledgment ought to contain an unqualified admission of a previous subsisting debt for which the party is liable, and which he is willing to pay. It follows that if the acknowledgment be accompanied by circumstances, or words which repel the idea of an intention to pay, no promise can be implied. Bell v. Morrison, 1 Pet. 351, 7 L.Ed. 174; Jones v. Moore, 5 Bin. 573; Berghaus v. Calhoun, 6 Watts, 219; Sands v. Gelston, 15 Johns. 511; Danforth v. Culver, 11 Johns. 146; Purdy v. Austin, 3 Wend. 187. In this last case the court say that the statute is one of repose, and should be maintained as such; that, while the unqualified and unconditional acknowledgment of a debt is adjudged in law to imply a promise to pay, the acknowledgment of the original justice of the claim, without recognizing its present existence, is not sufficient; and that anything going to negative a promise or intention to pay must be regarded as qualifying the language used. This doctrine was approved by this...