Gray v. Day

• Decision Date: 14 November 1912
• Parties: GRAY v. DAY.
• Court: Maine Supreme Court

84 A. 1073

109 Me. 492

GRAY

v. DAY.

Supreme Judicial Court of Maine.

Nov. 14, 1912.

Report from Supreme Judicial Court, Washington County, at Law.

Action by L. Austin Gray against John B. Day. On report. Judgment for defendant.

Argued before WHITEHOUSE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and HANSON, JJ.

H. H. Gray, of Milbridge, for plaintiff.

Warren C. Philbrook, of Augusta, for defendant.

SPEAR, J. This is an action on a promissory note, and comes up on report The plea was the general issue and the statute of limitations. A counter brief statement was filed alleging waiver of the statute and acknowledgment and promise in writing to pay. The case is made up entirely of correspondence between plaintiff's attorney and the defendant, together with the exhibits representing the original and renewal notes. The chronological order of the evidence is as follows:

1. Exhibit A, defendant's promissory note and indorsements of the following tenor: "Wesley, Me., Mar. 8, 1905. $72.00. Five months after date I promise to pay to the order of L. Austin Gray, seventy-two dollars, interest at six per cent Value received. John B. Day. [Indorsed on the back] Aug. 5, 1905, received $1.80 interest on the within. Oct. 3, 1905, received $20.00 on the within."

2. Exhibit D, a letter from the plaintiff's attorney to the defendant as follows: "Milbridge, Me., September 19, 1911. John B. Day, Esq., Waterville, Me.—Dear Sir: L. A. Gray has sent me a note against you upon which is due $72.85. This note will soon be barred by statute unless you make a payment, or action is commenced. If you will send me a payment at once so as to keep the note good we will then arrange to make it convenient for you to pay the balance, otherwise I shall have to commence action. Yours very truly, H. H. Gray."

3. Exhibit B, a letter from the defendant to the plaintiff's attorney which reads: "Waterville, Me., 9-21, 1911. Mr. H. H. Gray, Milbridge, Me.—Dear Sir: Yours of the 19th inst. at hand. Regarding same would say, I have had no thought of letting this note run out to avoid paying it, and had it run over that time I would feel just as much obliged to pay it. I know Austin has been very patient and I thank him for it. I am sorry to say that at the present time I don't see how I can pay anything on this note, but I will give a new note which would amount to the same thing you mentioned. Will you let me know if that will do, and we can fix it up any time in that way. Awaiting your reply, I am yours truly, John B. Day. P. S. I have a new pung for which I paid $55.00 and if he, Austin, would like that as payment, I would deliver it to him for $45.00. This is a spring pung, upholstered with green plush. It has never had the thills in it if he is interested in it, he can see it at Heman Dodge's in Wesley."

4. Exhibit E, a letter from plaintiff's attorney in reply to the defendant's letter, Exhibit B: "Milbridge, Me., September 30/11. John B. Day, Esq., Waterville, Me.—Dear Sir: I have written Austin who says he has a. spring pung and does not care for yours. He says he will renew the note for a year at 10 per cent. If you will pay my charges which will be small. I inclose note for you to sign if you desire to do this and if you will return this to me with $2.00 for my services it will extend the matter another year. Please sign at the right where I have made pencil cross and have a witness sign at the left Please return this at once if you desire to do this. When new note is received I will send you the old one. Yours truly, H. H. Gray."

5. Exhibit C, a letter of the defendant to the plaintiff's attorney in reply to Exhibit E: "Waterville, Me., 10-11, 1911. Mr. Gray-Dear Sir: Yours of the 30 ult. at hand some time ago. I have been thinking it over, and am sorry to say that it is impossible for me to pay 10 per cent interest. 6 per cent. Is all I can possibly pay. I will pay that, and do it as soon as I can. Yours truly, John B. Day."

6. Exhibit F, the last letter of the plaintiff's attorney to the defendant: "Milbridge, Me., November 2, 1911. John B. Day, Esq., Waterville, Me.—Dear Sir: I forwarded your letter to Austin and he makes three propositions: First, you give a note payable one-half in six months and the balance in one year at 6 per cent. Interest. Second, he will take a note at 6 per cent., for one year secured or with a good signer. Third, he will take your individual note one year at 10 per cent., and in either case you to pay my small charge of $2.00. Please let me hear from you at once in regard to the matter. Yours truly, H. H. Gray."

7. Defendant's Exhibit A, the renewal note: "Waterville, Me., Sept. 30, 1911. One year after date I promise to pay to the order of L. Austin Gray, seventy-two dollars and eighty-five cents with interest at ten per cent. per annum until paid. Value received."

To Exhibit F the defendant made no reply, whereupon suit was brought upon the original note; the plaintiff relying upon the correspondence above exhibited as an acknowledgment or promise sufficient to relieve the note from the statute of limitations. Upon these exhibits are raised two questions. First, do they, as claimed by the plaintiff, contain such an acknowledgment and promise in writing as to remove the bar of the statute? Second, do they prove a waiver which operated as an estoppel upon the right of the defendant to invoke the statute? It is the opinion of the court that both questions must be decided in the negative.

The principles of law raised in these two questions are so interwoven that it becomes quite necessary to consider them together, inasmuch as the language which is claimed to prove a waiver may at the same time be interpreted to convey a promise or acknowledgment, or a conditional promise. The case must be determined according to the language of our statute which is of long standing, and, by frequent construction from an early date down through its history, would seem to be well understood. The statute reads as follows: "In actions of debt or on a case founded on any contract no acknowledgment or promise takes the case out of the operation thereof unless the acknowledgment or promise is express, in writing and signed by the party chargeable thereby." R. S. c. 83, § 100. That this statute should be construed strictly in favor of the bar which it was intended to create, and not liberally in favor of a promise, acknowledgment, or waiver, is quite clearly established. In Perley v. Little, 3 Me. (3 Greenl.) 97, it is said by Chief Justice Mellen in discussing this statute that: "Doubts, uncertainties, and equivocal expressions are not by construction to be converted into promises or acknowledgments." Warren v. Walker, 23 Me. 453, decided in 1844, is also in point. To the same effect is Johnston v. Hussey, 89 Me. 488, 36 Atl. 993, in which Chief Justice Emery said: "After much and varying judicial exposition, statutes of limitations are now almost universally held to be statutes of repose to be interpreted and applied to effect that purpose. Any act or declaration imposed to defeat or postpone that effect is to be closely scrutinized." Johnston v. Hussey, 92 Me. 92, 42 Atl. 312, also approves of this rule of interpretation.

Another rule of law of important bearing upon the decision of this case starts in Perley v. Little, 3 Greenl., supra, and continues down through the cases, namely, that a promise, acknowledgment, or waiver, whether express or conditional, is to be determined upon an examination of the whole writing. In the language of Perley v. Little: "The plain and fair meaning of the party making use of the expression should be sought for, and then permitted to have its legitimate influence, and nothing further, in the decision of the question."

Our first inquiry, then, upon the written evidence before us, may be directed to the determination of whether the alleged promise was express or conditional. In Peavey v. Brown, 22 Me. 100, it was held that, even though a part...