McCrillis v. Millard

• Decision Date: 29 May 1892
• Citation: McCrillis v. Millard, 17 R.I. 724, 24 A. 576 (R.I. 1892)
• Parties: MCCRILLIS v. MILLARD.
• Court: Rhode Island Supreme Court

24 A. 576

17 R.I. 724

MCCRILLIS

v. MILLARD.

Supreme Court of Rhode Island.

May 29, 1892.

Assumpsit by Aaron B. McCrillis against Lorenzo D. Millard. Heard by the court, jury trial being waived. Judgment for plaintiff.

Dexter B. Potter, for plaintiff.

Henry J. Dubois, for defendant.

DOUGLAS, J. This action is brought to recover upon certain promissory notes made by the defendant. One for $1,000, due March 23, 1889, is not contested. The notes in dispute were payable to the order of plaintiff's intestate, David Millard, —one, dated September 1, 1884, on demand, for $18,488.90; the other, dated September 27, 1884, payable one day after date, for $1,687.33. David Millard died February 12, 1889. The action was commenced August 28, 1891. The statute of limitations is pleaded to the last two notes, and the plaintiff alleges a new promise on the 9th day of August, 1891. Before that time the parties had had several interviews, in which the defendant had always denied that the notes were a valid, subsisting obligation, alleging, as he says, that the larger note had been given as collateral security for debts which had been afterwards extinguished, or, as the plaintiff testifies, that the intestate was indebted to the defendant in other transactions to a larger amount than the sum of these notes. It is not quite clear from the evidence which defense the defendant relied upon, nor, in the view which we take of the case, is it important. Upon each of the notes appears this indorsement: "Aug. 9—90. Received on the within for renewal $1. A. B. McCrillis, Adm'r." It is established by a preponderance of evidence that on August 9, 1890, the defendant called at the store of the plaintiff, and was shown the notes, and requested to make a payment upon them, to prevent them from becoming outlawed, and he was told that otherwise suit must be commenced. He consented to make the payment, and took out his pocketbook, and finding that he had not more money than he needed for other purposes, and being in haste to catch a train, said: "I don't need to pay you the money. All you have to do is to indorse a dollar on each of the notes, and that will renew them." Plaintiff thereupon took the notes, and made the indorsements. Defendant went out after one indorsement was made, and while the other was being written. Plaintiff then charged himself as administrator with $2 as received on account of these notes.

The defendant's counsel has argued the case as if it were one where the promise depends upon implication from the payment of money only, and urges that there was here no actual payment, and that the denial of any subsisting obligation to pay on the part of the defendant rebuts any implication of a new promise which might be drawn from his acts. We think the transaction between the parties did amount to payment. "The true test," says Mr....