Lewis v. Hyams

• Court: Nevada Supreme Court
• Writing for the Court: BONNIFIELD, C.J.
• Citation: Lewis v. Hyams, 26 Nev. 68, 63 P. 126 (Nev. 1900)
• Decision Date: 29 December 1900
• Docket Number: 1,582.
• Parties: LEWIS v. HYAMS et al.

63 P. 126

26 Nev. 68

LEWIS v. HYAMS et al.

No. 1,582.

Supreme Court of Nevada

December 29, 1900

Appeal from district court, Storey county; C. E. Mack, Judge.

Action by Harris Lewis against Edward Hyams and William Hyams. From a judgment against William Hyams, and from an order denying his motion for a new trial, he appeals. Reversed.

Trenmor Coffin, M. S. Eisner, F. M. Huffaker, and W. D. Jones, for appellant.

W. E F. Deal and Edmund Tauszky, for respondent.

BONNIFIELD C.J.

This action was commenced on December 31, 1897, in the district court of the First judicial district in and for Storey county, against Edward Hyams and William Hyams upon a promissory note executed in the state of California, of which the following is a copy, to wit: "San Francisco, March 1st, 1882. $5,000.00. Three months after date, without grace we promise to pay to ourselves or order the sum of five thousand dollars, payable only in gold coin of the government of the United States, for value received, with interest in like gold coin at the rate of one (1) per cent. per month from ___ until paid. Hyam Bros." Indorsed: "Hyam Bros." The case was tried by the court sitting with a jury. The trial resulted in a judgment in favor of the plaintiff against defendant William Hyams for the sum of $14,475, together with interest on the sum of $5,000 thereof from the 17th day of May, 1899, till paid, at the rate of 1 per cent. per month, together with the further sum of $1,021.50 taxed as costs. This appeal is taken by William Hyams from said judgment, and from the order of the trial court denying his motion for a new trial.

It appears that the plaintiff and Edward Hyams were, at the time of the execution of said promissory note, ever since have been, and now are, residents of the state of California; that said Edward has not been absent from the state of California the place where the note was executed, altogether more than 18 months since the execution of said note. It also appears that William Hyams was at the time of the execution of said note, ever since has been, and now is, a resident of the state of New York, and that he has not been absent from said state of New York altogether more than 18 months since the execution of said note. It appears that at the time of the execution of said note Edward Hyams and William Hyams were copartners, and for a number of years prior thereto had been co-partners, under the firm name of Hyams Bros., carrying on business as wholesale manufacturers and dealers in clothing, both at the city of San Francisco, state of California, and at the city of New York, state of New York. The manufacturing of clothing for the firm was carried on in the city of New York, and the business there was conducted by William Hyams, and the business of the sale of the clothing by Hyams Bros. was carried on in San Francisco, Cal., and conducted by Edward Hyams; and Edward Hyams made, executed, and indorsed said note, and delivered the same to the plaintiff, for and in the name of said firm of Hyams Bros. In 1884 said co-partnership was dissolved.

Among other defenses, the defendants pleaded sections 32 and 33 of the statute of limitations of this state. Section 32 limits the time in which an action may be commenced on a contract, etc., made out of the state, to two years after a cause of action has accrued. Comp. Laws, § 3735. Section 33 provides: "When the cause of action has arisen in any other state or territory of the United States, or in a foreign county, and by the laws thereof an action there cannot be maintained against a person by reason of the lapse of time, no action shall be maintained against him in this state." Comp. Laws, § 3736. The defendants also pleaded certain laws of the state of California, in connection with said section 33 of the Nevada statute, by which the period is limited to four years for commencing an action after it has accrued upon any contract, obligation, or liability founded upon an instrument in writing executed in that state, and also the laws of the state of New York, which limits the time to six years for commencing an action upon a contract, obligation, or liability, express or implied, except a judgment or sealed instrument.

It is contended by counsel for appellant that an action upon said note was barred as against him, long before the commencement of this action, by the laws of the state of New York, and that, therefore, by reason of the provisions of said section 33 of our statute, no action can be maintained against him in this state. It is admitted by respondent's counsel that if the cause of action against appellant arose in New York, this action cannot be maintained, provided said section 33 has not been repealed. Counsel in their brief say: "We admit that if respondent's cause of action against appellant arose in New York, and if section 33 of our statute has not been repealed, appellant's motion for a nonsuit should have been granted." Appellant's motion for nonsuit was granted as to Edward Hyams, it appearing that the cause of action against him arose in California, and by the laws of that state an action thereon had been barred there. It is contended on the part of respondent that the cause of action against both of the defendants arose in the state of California, and that by reason of the nonresidence of William Hyams, and his absence from that state, an action against him was not barred there, the place where the cause of action arose, and that, therefore, it is not barred here, under said section 33. Appellant's counsel contend that the cause of action against him arose in New York, and, an action...