Gwinn v. Farrier

• Decision Date: 22 September 1932
• Citation: 165 S.E. 647
• Court: Virginia Supreme Court
• Parties: GWINN. v. FARRIER.

165 S.E. 647

GWINN.

v.FARRIER.

Supreme Court of Appeals of Virginia.

Sept. 22, 1932.

Error to Circuit Court, Giles County.

Action by notice of motion for judgment by Mrs. Lula H. Gwinn against M. P. Farrier, administrator of George W. Shumate. Judgment for defendant, and plaintiff brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, GREGORY, and CHINN, JJ.

W. B. Snidow, of Pearisburg, for plaintiff in error.

Williams & Farrier, of Pearisburg, for defendant in error.

EPES, J.

This is an action brought by notice of motion for judgment by Mrs. Lula H. Gwinn against M. P. Farrier, in his official capacity as the administrator of G. W. Shumate, to recover the sum of $472.26 which she alleges is the unpaid balance due to her on the following three items which G. W. Shumate owed her at the time of his death, to wit: (1) $300 evidenced by a note dated November 28, 1921, payable one year after date; (2) $195 due upon an open account for five cattle sold Dim in October, 1923; and (3) $12.36 for a quarter of beef furnished to him on December 20, 1923.

The notice alleges and the evidence proves that before these several demands were barred by the statute of limitations the plaintiff filed with the administrator proof of her claim, and demanded payment of these items; and that he "then and there agreed and promised to pay the same."

The defendant pleaded non est factum to the note, non assumpsit, the payment of $200 on account of the claimed indebtedness, and the bar of the statute of limitations as to all three items; and the following facts appear from the evidence:

Shumate died on November 25, 1924; on December 1, 1924, M. P. Farrier qualified as administrator of his estate; and this action was commenced on November 27, 1929, when the notice of motion for judgment was returned to the clerk's office. Some time after, probably soon after, October 2, 1925, Mrs. Gwinn presented this note and the two open accounts (the last two items being sworn to by her before a notary public) to the administrator, and filed them with him; and he kept these papers until "about the day this action was brought, " when, at her request, he returned them to her.

At the time these papers were filed with him. the administrator promised her to pay these three items. He thereafter gave her two checks for $100 each to be applied on account thereof, one dated December 13, 1925, and the other March 1, 1927; and on these occasions and at later times he promised her to pay the balance.

The checks referred to were not introduced in evidence, and there is nothing in the record to show that they contained any waiting on them other than an order to the bank to pay to the payee the amount therein specified; and the inescapable inference from the record is that all the promises of the administrator relied upon were oral promises.

When the administrator first refused to pay the balance of these items does not appear from the testimony of either Mrs. Gwinn or the administrator; but her son testified that "Mr. Farrier first refused to pay any more on the debt just before this action was brought."

The widow of Shumate testified that the note sued upon was not signed by him and was a forgery, that he did not get the five cattle for the purchase price of which Mrs. Gwinn sued, and did not owe for the quarter of beef for the value of which she sued; but this testimony was contradicted by witnesses for the plaintiff.

The administrator testified that he made the payments and promises above mentioned, but that he did so before his attention was called to the fact that the signature of the note was not genuine; and that later, after he had examined the signature, he was of the opinion that it was not that of G. W. Shumate, and "he then told Mrs. Gwinn, or her son, William G. Gwinn, that he would make no further payments on it."

The court, in effect, instructed the jury that there was no evidence of any fact which was sufficient to take the case out of the statute of limitations, and that the causes of action sued upon were barred.

The jury returned a verdict for the plaintiff for "the amount sued for less the credits"; but the court sustained a motion to set aside the verdict on the ground that it was contrary to the law and the evidence, and entered judgment for the defendant. From this judgment a writ of error has been allowed Mrs. Gwinn.

The assignments of error here made present only two questions for decision:

(1) Did the filing of the proof of these claims with the administrator, his unqualified promise to pay them made before they were barred, and the part payments made by him thereon before they were barred, operate to take the ease out of the statute of limitations?

(2) When proof of claim of a debt is filed with an administrator, and he then or thereafter, before the debt is barred, promises to pay it and makes part payment thereof, is he thereby estopped to plead the statute of limitations against an action on the debt?

We think both of these questions must be answered in the negative.

Section 5S12, Code Va. 1919, so far as is here material, provides as follows:

"If any person against whom the right shall have so accrued on an award, or any such contract, shall, by writing signed by him or his agent, promise payment of money on such award or contract, the person to whom the right shall have so accrued may maintain an action for the money so promised, within such number of years after such promise, as it might be maintained under section fifty-eight hundred and ten, if such promise were the original cause of action. The plaintiff may sue on such promise or on the original cause of action, except that where the promise is of such a nature as to merge the original cause of action, then the action shall be only on the promise. If the action be on the original cause of action, and the defendant files a plea under section fifty-eight hundred and ten, the plaintiff shall be allowed to reply specially such promise, or he may, without replying specially, show such promise in evidence to repel the bar of the plea, provided he shall have given the defendant reasonable notice before the trial of his intention to rely on such promise.¹ An acknowledgment in writing, from which a promise of payment may be implied, shall be deemed to be such promise in the meaning of this section."

Section 5812 must be construed in the light of the law as it existed prior to the enactment of any similar statute, ² and in the light of the history of this section and the statutes in which it had its origin.³ When so construed, it provides by necessary implication that neither an oral acknowledgment or new promise to pay a debt, ⁴ nor a part payment⁵ thereof, unless evidenced by a writing which in itself amounts to an acknowledgment of the debt." shall be sufficient to take the debt out of the statute of limitations and support a recovery thereof after an action on the original promise has become barred; and that any acknowledgment or new promise to have that effect must be made by writing, signed by the person to be charged thereby or his agent.

There is nothing in section 5812 which excludes from its provisions acknowledgments and promises made by a personal representa-tive in his official capacity, and it applies in any case in which, under the existing law, an acknowledgment, promise, or part payment⁷made by an executor or administrator is permitted to have the effect of taking an action for the recovery of a debt of his decedent out of the statute of limitations.

All the promises of the administrator here relied upon were oral promises. The part payments made by him were made by two checks, but there is no evidence in the record to show that there was any writing upon either of them, other than a mere order upon the bank to pay the payee the amount therein stated, from which an acknowledgment of the debt could be implied. Therefore, were there no other statute or rule of law to prevent the promises and/or part payments made by the administrator from taking this case out of the statute of limitations, section 5812 does so.

But we are further of opinion that the provisions of section 5813, Code 1919, prevent the promises and/or part payments made by the administrator in this case from taking the case out of the statute.

Section 5813, Code Va. 1919, and the related section 5406 were first enacted in their present form as section 8, c. 149, and section 6, c. 132 of the Code of 1849. They have remained unchanged except for the changes in section numbers made necessary by the several Code revisions. Section 5813 and the material part of section 5406 read as follows:

Section 5813: "No acknowledgment or promise by any personal representative of a decedent, or by one of two or more joint¹contractors, shall charge the estate of such decedent, or charge any other of such contractors, in any case in which but for such acknowledgment or promise, the decedent's estate or another contractor could have been protected under section fifty-eight hundred and ten."

Section 5406: " * * * if any personal representative, guardian, curator, or committee shall pay any debt the recovery of which could be prevented by reason of illegality of consideration, lapse of time, or otherwise, knowing the facts by which the same could be so prevented, no credit shall be allowed him therefor."

The plaintiff in error earnestly insists that section 5813 has no application to a case in which a personal representative has made a promise to pay a debt of his decedent which was barred at the time the promise was made. Her main contention is that the use in the limiting clause of the words "could have been protected" necessarily implies that it relates to the time of the promise, and that the limiting clause should be construed as if it read, "could have been protected at the time the promise was made." She argues that, before there was any statutory enactment on this subject, a promise made by a personal...