Kellogg v. Dickinson

• Decision Date: 19 October 1888
• Citation: 18 N.E. 223,147 Mass. 432
• Parties: KELLOGG v. DICKINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 432

18 N.E. 223

KELLOGG v. DICKINSON.

Supreme Judicial Court of Massachusetts, Hampshire.

October 19, 1888

COUNSEL

T.G. Spaulding, for plaintiff.

Hamlin & Paige, for defendant.

OPINION

KNOWLTON J.

The first of these actions was brought to recover the balance of a promissory note for $500, owned by the plaintiff, and signed by the defendant's intestate, dated January 9 1847, payable one year after date, and bearing an indorsement in these words: "AMHERST, January 8, 1853. Paid on the within note ten dollars, and agree that I will not take any advantage of the statute of limitations. PORTER DICKINSON." The second is a writ of entry to foreclose a mortgage given to secure payment of this note. Both suits were commenced May 9, 1887. There was no evidence, outside of the papers, that the note or mortgage, or the debt secured by them, had in any way been recognized or acknowledged since January 7, 1853, or that any payment of debt, interest, or rent had been made from that time to the year 1885. The defendant contended and asked the court to rule, in the first case, that the note was barred by the statute of limitations. The court refused to so rule, and ruled "that if the indorsement of the note declared on was made by Porter Dickinson, it had the legal effect of barring the defense by the defendant of the statute of limitations."

It is unnecessary to decide in this case whether a separate contract not at any time in the future to set up the statute of limitations as a defense to a promissory note, entered into for a valuable consideration by the maker of the note would be void as against public policy. The statute of limitations would not begin to run upon such a contract so long as it remained unbroken. Assuming, without deciding that, in a suit upon the note, brought many years after its maturity, a contract of this kind would avail the plaintiff either by way of estoppel, or to avoid circuity of action, as an answer to a plea of the statute of limitations by the defendant, the indorsement upon the note in the present case can have no such effect, for there was no evidence at the trial of any consideration for the agreement contained in it; and the court took from the consideration of the jury the second count in the declaration, alleging the existence and breach of such a contract, on the ground that there was no evidence to sustain it. There were only two ways in which this agreement could be operative. It was a sufficient acknowledgment and new promise to take the note out of the statute. Perhaps, also, it created a technical estoppel against the maker. See Burton v. Stevens, 24 Vt. 131; Insurance Co. v. Bloodgood, 4 Wend. 652; Quick v. Corlies, 39 N.J.Law, 11. Considered as an acknowledgment and new promise, it extended the time during which the note could be sued, to the end of six years from the date of the indorsement, and no longer. In that aspect it is therefore of no avail to the plaintiff in this suit. If, as appears likely, the agreement was signed under such circumstances, and was so acted upon as to work an estoppel against the defendant, two questions arise: First. Can such an estoppel be effective in any case after the expiration of six years from the act relied on as creating it? Secondly. If it can, was the language of this indorsement intended to have effect for a longer time than six years? The first of these questions it is unnecessary to consider, for the answer to the second is decisive of the case. The indorsement was...