Madison v. White, 5166.
| Decision Date | 16 November 1931 |
| Docket Number | No. 5166.,5166. |
| Citation | 54 F.2d 440,60 App. DC 329 |
| Parties | MADISON v. WHITE. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Andrew Wilson, of Washington, D. C., for appellant.
C. H. Merillat, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
This is an appeal from a judgment of the Supreme Court of the District of Columbia for $3,620.37, with costs, entered on a verdict for plaintiff in an action on two promissory notes.
Appellee, hereinafter called plaintiff, is one of three younger sisters of appellant, hereinafter called defendant.
From a time prior to 1890 the four sisters, their mother, and their brothers, were interested in certain property in northwest Washington, that of particular interest to this case being in square 2935 bounded by Twelfth, Thirteenth, Madison, and Longfellow streets.
The family home was on Longfellow street, and there, during most of the time with which we are concerned, plaintiff and defendant lived together, with one or more of their sisters.
On May 18, 1915, defendant gave plaintiff her two promissory notes here in suit, each payable on or before two years from date, one being for $905.35, and the other for $1,319.00, bearing interest at 6 per cent. and 5 per cent. respectively.
Plaintiff testified that these notes represented renewals of notes for her share of a loan by their mother from guardianship property of plaintiff and her other sisters then minors, made to the defendant upon her coming of age.
Defendant admitted receiving the loan from the mother but denied owing anything to plaintiff on account thereof, and claimed there was no consideration for these notes.
The notes were not paid at maturity nor within three years thereafter.
In January, 1924, plaintiff and defendant having agreed each to build a garage on their adjoining properties in square 2935, and access thereto being required by plaintiff across a strip of defendant's land, a deed was made to meet the situation, which recited a nominal consideration from each to the other.
Plaintiff and her sister Mrs. Somerville testified that defendant suggested as the real consideration for the right of way, a credit on her notes of an amount to be agreed upon after competent calculation of the footage involved.
Mr. Clayton, a member of the bar, testified he had the requisite calculations made at the Municipal building in the spring of 1924.
On the back of the smaller note a credit of $100 was made, and on the back of the larger, a credit of $169.25, both as of April 15, 1924, and both in the handwriting of plaintiff.
Plaintiff testified that the amounts were agreed upon on that date and then placed on the notes by her at the direction and with the authority of defendant, just after a final settlement by them with the contractor for his work.
This was corroborated by her sister Mrs. Somerville who claimed to be present, or nearby, during much, if not all, of the conversation.
This was denied by defendant, who said, with at least equal corroboration, that she and plaintiff were not on speaking terms at that date, nor for some time prior and subsequent thereto.
The defense being lack of consideration for the notes of 1915, and the statute of limitations, the first of which was poorly maintained, much depended upon the real facts surrounding the entries of April 15, 1924.
Since the declaration was filed April 11, 1927, the credits, if so authorized as to revive the prior debt, must have been made within three years of the latter date to prevent the statute from running.
The first error assigned is to the admission of parol evidence as to the consideration for the agreement under seal of January 23, 1924.
Code, D. C., title 11, chapter 1, section 5, after providing that no acknowledgment or promise by words only shall be sufficient evidence of a new or continuing contract unless in writing signed by the party chargeable, says: "Provided, That nothing herein contained shall alter or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever: * * * No indorsement or memorandum of any payment written or made upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall purport to be made, shall be deemed sufficient proof of such payment so as to take the case out of the operation of the statute of limitations."
Consequently a new promise or acknowledgment cannot be proved by oral evidence of its making, but there must also be a signed writing of the party charged, while a part payment to avoid the statute, must be proved by evidence in addition to its indorsement on the note.
While in the present case there was some evidence of acknowledgment, the chief reliance of plaintiff was on the part payment and on the portion of the statute relating thereto.
Competent parol evidence was therefore not only admissible but requisite under the statute.
This court has held that the section of the Code under consideration does not make testimony as to an oral acknowledgment wholly inadmissible in evidence, but simply provides that it shall not be deemed sufficient evidence while standing alone. Shelley v. Westcott, 23 App. D. C. 138.
And in Catholic University v. Waggaman, 32 App. D. C. 320, we not only recognized the admissibility but the importance of oral testimony connected with an indorsement of part payment.
The question before the trial court being whether the indorsements of the payments on account were authorized by defendant, and the facts about those credits therefore being material, Was the plaintiff precluded by the seal on the agreement of January 23, 1924, from showing consideration for that instrument, in addition to the nominal one mentioned therein?
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