Mainzinger v. Mohr
| Decision Date | 21 October 1879 |
| Court | Michigan Supreme Court |
| Parties | CHARLES MAINZINGER v. CONRAD MOHR. |
Payment was made upon a joint note, within six years, by one party thereto, in presence of the other, who was in fact only a surety, under circumstances that the creditor might well have supposed it a payment by both. Held, to take the same out of the statute of limitations as to both.
Exception to Monroe.
George McLandon, for plaintiff in error,
Ronan & Parker and John C. Shields, for defendant in error.
This case presents a question of the application of certain sections of the Compiled Laws which are given in the margin. [*]
The suit is upon a joint and several promissory note, dated August 30, 1870, whereby John L. Miller and Charles Mainzinger promised to pay Mrs. Helena Mohr, or bearer, three hundred dollars, with eight per cent. interest, in one year after date. In this note Mainzinger was surety for Miller though the fact was not disclosed on the face of the paper.
No part of the principal of this note was ever paid; but the interest was paid by Miller from time to time up to January, 1876. The question in this case depends in part upon the evidence of Conrad Mohr as to a payment made to him in May, 1877, he then owning the note. According to his statement Miller and Mainzinger came together to his place of business, where the interest was reckoned up to that time, and Mainzinger handed to him the money to pay it; he understanding however, that it was Miller's money. The amount paid was eighteen dollars. Mainzinger tells a story which was altogether different. He says that in August or September, 1875, at Miller's request, he went with him to Mohr's shop to witness the payment of interest by Miller on this note; that Miller asked him to go to see that it was all right; and that nine dollars was paid in his presence but that he did not take or handle the money at all. His evidence differs to this extent from the story told by Mohr.
The suit was brought more than six years after the maturity of the note, and all remedy against Mainginger was then barred unless kept alive by the payments.
At the common law a payment made by one of the debtors would have kept the demand alive as to both, and would have been equivalent to a new promise by both. Wyatt v. Hodson, 8 Bing. 309. So at the common law a new promise to pay a debt barred by the statute might be inferred from a mere recognition of the existence of a just demand; and where this rule was so changed as to require an express promise in writing, it was wisely provided that one joint debtor should not have it in his power to keep alive or revive a debt against another by a payment in which the other did not participate. A payment under this statute is equivalent to a new promise; and as one cannot make the express promise for the other, neither can he make for him the indirect promise which a payment implies. Marienthal v. Mosler, 16 Ohio, N.S. But in this case, as it appears to me, whether we rely upon the statement of the one party or of the other there was a payment which Mohr had a right to understand was made by both his debtors. Both came to him together on the business of making a payment upon the note, and it was made and correctly credited not merely in the presence but with the participation of both. Let it be admitted that the money was Miller's, and that he alone handed it over, and I cannot see that this precludes the payment being a joint act. It did not concern Mohr whose money was paid to him, or from whose hands he received it; and any joint payment, though all the debtors were present, would usually be made in the same way. The creditor has not only no concern with, but no business to inquire into the transactions between his debtors which result...
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