McMerty v. Morrison

• Decision Date: 31 January 1876
• Citation: 62 Mo. 140
• Parties: JOHN MCMERTY, Defendant in Error, v. CHARLES H. MORRISON, Plaintiff in Error.
• Court: Missouri Supreme Court

62 Mo. 140

JOHN MCMERTY, Defendant in Error,

v.CHARLES H. MORRISON, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1876.

Error to St. Louis Circuit Court.

J. C. Terry, for Plaintiff in Error.

The note was prescribed by the laws of Louisiana, and that prescription operated to extinguish or alter the obligation, so that an action on it will not lie in any place. (Baker vs. Stonebraker, 36 Mo., 338; Carson vs. Hunter, 46 Mo., 467; 1 Greenl., 45, § 39; Sto. Confl. of Laws, 6th ed., § 582; Civil Code La., Arts. 2126, 3420, 3422, 3494, 3497, 3505; Brown vs. Union Ins. Co., 3 An. [La.], 183; Christian vs. Chaney, 5 Id., 219, 220; Livistones vs. Morigny, 13 Id., 353; Brown vs. Shields, 13 Id., 57; Cowand vs. Pulley, 11 Id., 2; Suc. of Ferguson, 17 Id., 256; Suc. of Virgin, 18 Id., 44; Durand vs. Hume, 20 Id., 345; Billurgs vs. Hall, 7 Cal., 1; Winburn vs. Cochram, 9 Tex., 123; Le Roy vs. Crown, 2 Mason, 166; Townsend vs. Jennison, 9 How., 417; Ersk. Inst., 800; 2 Pars. Bills, 631; Mayor vs. Pyne, 3 Bing., 285; Williams vs. Jones, 13 East, 439; Dunford vs. Clark, 3 Louis, 201; Lortheth vs. Hogan, 1 An. [La.], 330; Suc. of Linderman, 3 Id., 714; Shields vs. Brundige, 4 La., 326; Blanchard vs. Russell, 13 Mass., 1; 4 Cow., 511; Le Roy vs. Crowenshield, 2 Mason, 166; 10 Barn. & Cr., 909 and foot note; Partidas, preface & p. 369; Booke vs. Flood, 5 Martin [La.], 403, 404; 4 La., 327.)

A. Hamilton, with R. H. Musser, for Defendant in Error.

Article 3505 of the Civil Code of Louisiana, is not an absolute extinguishment of the debt, but is merely a statute of limitations. (Stewart vs. Leroy, 11 Wal., 244; Harper vs. Abbott, 6 Wal., 532; The Protector, 9 Wal., 687; Stewart vs. Kahn, 11 Wal., 494; S. C., 24 La. An., 31; Adger vs. Alston, 15 Wal., 555; see also C. C. La., Arts. 3424, 3426.)

And to avail himself of the prescription, defendant must plead it. If he fails to do so, he is considered as having waived it, and the plaintiff will recover (Dunford vs. Clarke's Est., 3 La., 204; Pereoux vs. Lacoste, 19 La. An., 266; Poth. Obl., p. 3, ch. 8, art. 1, § 676; Paillst Mann. De Droit Title, 20 de la prescription, p. 703, note 3; Duranton Traite des Obligations Tome 4, p. 92; Union Manuf. vs. Lebdale, 7 U. S., 108; Erwin vs. Lowry, 2 La. An., 314; Newman vs. Goza, Id., 642; Lacoste vs. Benton, 3 An., 220; Brown vs. Stone, 4 An., 235; Taylor vs. Ivor, 7 An., 272: Sto. Confl. L., pp. 576, 577, 579; 2 Pars. Contr. [6th Ed.], 590, and notes; Lincoln vs. Battelle, 6 Wend., 475; Carlin vs. Page, 8 Vt., 147.)

WAGNER, Judge, delivered the opinion of the court.

This was an action on a promissory note made by the defendant in the State of Louisiana, and payable there, dated February 7, 1861, and due one year after date. The plaintiff in order to avoid the statute of limitations in this State, alleged a state of war existing between the North and South, and also declared that the note was, during the existence of the war, held by persons residing in the North, and that the defendant, during the same period, resided in the South. There was also an averment that plaintiff became possessed of the note by purchase since the proclamation of peace between the respective sections of the country.

Defendant in his answer admitted the execution of the note, but in avoidance of any liability thereon, he averred that the note was made in Louisiana, and was made payable there, and was to be interpreted and controlled by the laws of that State; and that by the laws of that State, the note was prescribed in five years; that more than five years had elapsed between the maturity of the note and the institution of this suit, after allowing till August 20th, 1866, for the prevalence of war; that the effect of the statute of prescriptions of Louisiana was, to destroy the right or obligation, and after the five years had run against the note, the obligation was extinguished or so altered in character that an action could not be maintained on it in this State. Defendant further denied that plaintiff ever purchased the note, but alleged that he paid the same under legal pressure as indorser, and stated, that under the statute of limitations in this State his action was barred.

In answer to the last defense set up in the answer, it is sufficient to say that the evidence is direct and positive, that the plaintiff did purchase the note from the owner who held it for a valuable consideration, and upon that point there can be no question of the correctness of the judgment below. The only point in the case upon which there can be any real contention, is the second instruction given for the plaintiff, which declared that the effect of the Louisiana law of prescription, after the lapse of five years, was not to extinguish and discharge the debt; that the law was substantially a law of limitations, the running of which in this case was interrupted or suspended from the 16th day of August, 1861, to the 20th of August, 1866, during which time all commercial intercourse between citizens and inhabitants of Louisiana and citizens of Missouri, was by law forbidden. The proposition that the time during which the war raged, and all commercial intercourse was forbidden, should be deducted from the time in which the statute would run, is not disputed in this court, nor could it be successfully denied, for it is now the well settled and established law. After taking out the time of interruption, the period is less than ten years, the bar under our statute, but more than five, the prescription by the Louisiana law.

The doctrine is firmly rooted, that the statute of limitations of the country in which suit is brought, may be pleaded to bar a recovery on a contract made out of its political jurisdiction, and that the statute of the place where the contract was made, cannot be so pleaded. But where the statute of limitations where the contract is made operates to extinguish the contract or debt itself, the case no longer falls within the law in respect to the limitation of the remedy; and when such a contract is sued upon in another State, the lex loci contractus and not the lex fori is to govern. (Baker vs. Stonebraker, 36 Mo., 338; Shelby vs. Guy, 11 Wheat., 361.)

The main question then is whether the civil code prevailing in Louisiana, where it prescribes the time for bringing actions is to be regarded as a mere statute of limitations, or whether it operates as a complete extinguishment of the debt. Several articles of the code were introduced in evidence and are copied in the bill of exceptions.

Art. 2126 says, obligations are extinguished by prescription. In Art. 3420, it is declared that prescription is a manner of acquiring property, or discharging debts by effect of time, and under the conditions regulated by law; and Art. 3494, provides that the prescription which operates a release from debts, discharges the debtor by the mere silence of the creditor during the time fixed by law, from all actions, real or personal, which might be brought against him. By another provision actions on bills of exchange, promissory notes, etc., are prescribed in five years. As this is a foreign law, we must seek for its proper construction in the adjudicated cases in the courts of the country where the law exists. The question has repeatedly been before the Supreme Court of Louisiana, and some of its decisions will now be referred to.

In the succession of Ferguson (17 La. An., 255), which was an action by a mortgage creditor for preference on notes and interest, the plea of prescription of five years was the only point presented for consideration. The chief justice in delivering the opinion of the whole court, says: “After five years had elapsed from the maturity of the notes, Allen made provision for their payment in the act of sale to C. Ferguson, which, if not an explicit, is certainly a tacit renunciation of prescription. He acknowledged their binding effect in providing for their payment. But it is declared by the civil code that prescription is one of the modes of extinguishing debts; and as these notes were thus extinguished, it is contended that the accessory obligation of mortgage was not revived by the renunciation of prescription. It would be of no avail in this case to examine this position.” Here the court distinctly recognizes the parties' right to renounce the...