Hopper v. Hopper

• Decision Date: 13 July 1901
• Citation: 39 S.E. 366,61 S.C. 124
• Parties: HOPPER et al. v. HOPPER.
• Court: South Carolina Supreme Court

39 S.E. 366

61 S.C. 124

HOPPER et al. v. HOPPER.

Supreme Court of South Carolina

July 13, 1901

Appeal from common pleas circuit court of Cherokee county; Hudson Special Judge.

Action by D. J. and C. C. Hopper, administrators of W. J. Hopper against Samuel L. Hopper. Verdict for plaintiffs, and defendant appeals. Affirmed.

The judge charged the jury as follows:

"This action is brought by the administrators of the estate of W. Junius Hopper against Samuel Hopper upon two notes, the notes reading as follows:

$500.00. One day after date, I promise to pay W. J. Hopper $500, borrowed money. January 1st, 1884. S. L Hopper.'

$550.00. One day after date I promise to pay W. J. Hopper $550, borrowed money. January 1st, 1885. S. L. Hopper.'

They are written one below the other, gentlemen, on the same piece of paper, and pasted together. Now, the action is brought to recover the amount alleged to be due on these two notes that are out of date, upon the promise to pay the notes from certain alleged credits, to wit, the first credit that is alleged--the first payment alleged to have been made--is January 1, 1896, and reads as follows: 'January 1, 1896 and received on the within notes $276.40. W. J Hopper,'--and is signed on the back of each. The next payment that is indorsed upon the back of the notes is as follows: 'Paid on the within notes, June 4th, 1896, $288.05,'--and not signed. These notes, gentlemen of the jury, are not denied by the defendant in the case, but by a general denial in the answer. In the answer he sets up, as I conceive it, outside of the general denial, two defenses. One is that $500 was paid on these notes under a contract by which he was to get $500 for selling a certain tract of land, and that the land was sold according to the contract, and therefore a payment was made. I say that is the first defense,--a payment of $500. The next defense is the statute of limitations,--that this case is barred by the statute of limitations; and then a specific denial that the plaintiffs are the owners of the notes. In order for the plaintiffs to recover in this case, it is necessary for them to show that they are the owners of the notes, and that, although out of date, yet that within the last six years certain payments were made on the notes, and upon these payments a new promise is implied; in other words, that these payments took the case out of the statute of limitations. Those are the points at issue.

Now, gentlemen, I am requested to charge you certain propositions of law by the defendant's counsel, which I will now note: (1) 'A payment made on behalf of a debtor is not sufficient to avoid the statute of limitations, unless the additional fact appears that it was authorized by him, or was adopted by subsequent ratification.' That is correct. A payment must have been made by himself or his agent. (2) 'An admission, to avoid the statute, must amount to an unqualified acknowledgment of the debt, disconnected with any circumstances indicating an intention to avoid liability upon it.' That is not involved in this case, because it does not rest upon admission; it rests upon payments. The question is payment or no payment. (3) 'A creditor who has several claims against his debtor, and receives a general payment, may apply it to one of the claims which is out of date, but it does not revive the remainder of the debt. But he cannot divide the payment, and apply a part to all.' In that, gentlemen, he is at liberty to do as he pleases, unless he is requested. (4) 'A new promise, which will take a claim out of the statute of limitations, cannot be inferred from a payment, unless there is an actual affirmative intention on the part of the debtor to make a payment upon the debt claimed to be due. There must be an intention on the debtor's part to waive the bar of the statute.' It must be a payment, gentlemen, on the debt, and must be so intended. If it is, it takes it out of the statute. (5) 'Part payment within statutory period by a debtor who owes two clear, undisputed debts, does not take either out of the statute of limitations, where a remittance is not specifically appropriated to either.' In reference to that, if it is within the statute bar, we have nothing to do with it. If the statute is a bar, and a general payment made upon the claims, as I said before, the creditor can apply a part to one and a part to the other, unless directed otherwise. (6) 'If the debtor shall pay with one intent, and the creditor receives with another, the intent of the debtor shall govern.' That is very true. (7) 'The debtor must assent to any credits placed on the claim barred by the statute of limitations by his creditor.' Certainly, it must be a payment made by the debtor, or at his direction. (8) 'After the bar of the statute has barred a debt, the interest of the creditor to fabricate evidence is strong enough to overcome any presumption that might otherwise arise from an instrument made by him.' That is not complete within itself, and it requests me to charge you on the weight of the testimony. So I cannot charge that request. (9) 'It is essential that an indorsement made on a note against which the statute of limitations has run at the time the instrument was made, that such indorsement was made bona fide, and with the privity of the debtor.' That is correct. (10) 'The payment by operation of law or acknowledged by creditor on account of an equitable set-off or counterclaim which the debtor might insist upon, or which he has never claimed to have applied as such, is not such a payment as will operate to prevent the statute from running.' I cannot see any application in that request to this case, and therefore I do not charge it. (11) 'A payment made by a debtor to whom he owes several distinct debts, without any direction as to its application, and immediately applied by the creditor to a debt barred by the statute of limitations, will not take the remainder of that out of the statute.' (12) 'The mere indorsement of the credit on the notes is not sufficient, and they cannot be even read in evidence without proof that they had been made by or with the consent of the defendant, or actual proof that such payment had been made.' That is correct.

Now, gentlemen, here is our statute, which I will read to you, , and by which you are to be governed as far as it applies to the case. After providing that claims of this kind shall be barred, then section 131 of the Code reads as follows: 'No acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but payment of any part of principal or interest is equivalent to a promise in writing.' So, gentlemen, the law of the case is simply this: If you should find as a fact that these payments were made upon these notes as indorsed here,--when I say 'made,' I mean made by the debtor, or by his direction,--if that be the case,--then the plea of the statute of limitations amounts to nothing. Right upon that question, were these payments made upon these notes by the debtor, as indorsed on that paper, as it purports to be a payment, and reads as follows: 'January 1st, 1896, received on the within notes $226.40,' signed by W. J. Hopper? That of itself is a question. You will have to take all the testimony, and decide that yourself. The second has no signature to it. Whether these payments were made, is a question for you,--a question of fact for you; and I cannot help you. I cannot comment upon the testimony, and therefore it is left for you to say.

In evidence in connection with these two notes is one that reads as follows: '$552.80. On or by the first of January, 1896, we, or either of us, promise to pay J. Q. Little or order the sum of $552.80, for value received of him. Interest after maturity at eight per cent. This September 5th, 1895. W. J. Hopper. T. H. Littlejohn. S. L. Hopper. Now, I cannot make any comment upon these things in evidence, upon these dates in evidence. It is a question of fact for you. The evidence as to what transpired in the bank and elsewhere--the testimony of all these witnesses--is for you. As I tell you, I cannot comment upon it, for, if I could, then, if I could, under the statute,--under the law of the state,--I could give you my impression in regard to the testimony; but I cannot comment upon it. You have to do that. You are the sole judges of the facts. Now, gentlemen, one question is, did this debtor, S. L. Hopper, pay to his deceased brother the $500 claimed in connection with that land sale? Well, in order for it to be a payment, you would have to find from the evidence that it was to be a payment, an agreement to be a payment, that such a contract existed between the parties. Did they come to a definite understanding? Then the other leading question is as to these payments here. If those payments on there were made upon the notes by his direction, or by himself, it is not barred; and the only question is, what are you to do? If both payments were made, you will calculate the interest on the two notes up to the time of the first payment, and give credit for that, provided it exceeds the interest. Then that will give you a new principal, and you would calculate the interest up to the time of the second payment, and give credit for that. Then you would get a new principal. Start on that,--on the balance up to the present time. If you find the $500 to be credited, you will also, from the testimony, fix what date it is to be credited on, for that must come off as a payment. If it was not a payment, you will pay no attention to it. If you conclude as a matter of fact that these payments were not made by

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