Mills v. Davis

• Decision Date: 16 April 1889
• Citation: 21 N.E. 68,113 N.Y. 243
• Parties: MILLS v. DAVIS et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 243

21 N.E. 68

MILLS

v.DAVIS et al.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, Second department.

Action on a promissory note by Benjamin S. Mills, executor of Clarissa Darling, deceased, against Daniel R. Davis and others, administrators c. t. a. of Elizabeth Jayne, deceased. From a judgment on appeal from referee's report in favor of plaintiff, defendants appeal.

Thomas J. Ritch, for appellants.

Thomas S. Strong, for respondent.

DANFORTH, J.

The claim which gave occasion for this proceeding was a writing in these words: ‘$300. Setauket, Nov. 17, 1864. For value received, I promise to pay to Clarissa Darling or order, three hundred dollars, on demand, with lawful interest. ELIZABETH JAYNE.’ It does not appear when Clarissa Darling, the payee, died, but letters of administration were issued upon her estate July 10, 1871, and it is stated by counsel for the respondent that the payor, Elizabeth Jayne, died, September 10, 1884. Some time between that date and the 12th of March, 1886, the plaintiff, as executor of Clarissa Darling, presented the note, as a claim against the estate of Elizabeth Jayne, to her executor, and, he doubting the justice of it, a referee was appointed to hear and determine the matter. Upon the trial it appeared that the body of the note was written by Mary Baylis, formerly Mary Darling, a daughter of the payee. There was enough evidence to call for the opinion of the referee as to the genuineness of the note, and by his finding that fact is established. But, although bearing interest, and payable on demand, the statute of limitations began running at the date of the note, (Wenman v. Insurance Co., 13 Wend. 268;Herrick v. Woolverton, 41 N. Y. 581;McMullen v. Rafferty, 89 N. Y. 456,) and, unless something occurred to obstruct its passage, the bar fell in November, 1870, and, if raised then, it fell again in 1876, and again in 1882, and was well on its way for the fourth blow, when, after the expiration of more than 20 years from the time an action might have been commenced upon the note, it was, so far as appears from the testimony, for the first time presented to any person or party concerned in its validity, and then was doubted and disputed. The statute limiting the time of enforcing a civil remedy declares that an action upon a contract must be commenced within six years after the cause of action has accrued, (Code Civil Proc. §§ 380, 382,) and that, in order to take a case out of the operation of these provisions, an acknowledgment or promise in writing, signed by the party to be charged, is necessary, (Id. § 395;) but there is a proviso that this enactment ‘does not alter the effect of a payment of principal or interest,’ (section 395.) There is no suggestion or pretense that by any such acknowledgment or promise as the statute requires a new and continuing contract was created, nor is there any allegation or suggestion of payment of any portion of principal, and therefore the inquiry before the referee was limited to the single question whether there had been any such payment of interest as would take the demand out of the statute. That fact, if it existed, might be proved in the same manner as before an acknowledgment, or a new promise was required to be in writing. The statute changes neither the nature nor effect of part payment, nor does it prescribe any new rule of evidence in regard to it. It merely recognizes and continues the rule as established by the previous decisions of the courts. Bank v. Ballou, 49 N. Y. 155;Harper v. Fairley, 53 N. Y. 442. It may still be proved by parol. Cleave v. Jones, 6 Exch. 573; Bank v. Ballou, supra. There is no testimony of that character showing payment. Although the claimant at once assumed the burden of showing that the case was freed from the statutory bar, the only proofs of payment offered by him were certain writings upon the back of the note, made by himself, and reading as follows: ‘Interest paid on the within note to Nov. 17, 1868. Clarissa Darling, by B. S. M. Interest paid on the within note to Nov. 17, 1870. Interest paid on the within note to Nov. 17, 1875. Interest paid on the within note to Nov. 17, 1876. Interest paid on the within note to Nov. 17, 1877. Interest paid on the within note to Nov. 17, 1878.’ An indorsement or memorandum of part payment is held competent evidence for the consideration of a jury as showing an acknowledgment of debt, and to rebut the presumption of its payment arising from the lapse of time. But in order to render such indorsements admissible it must appear that when made there was a pecuniary interest with which they were at variance. It was therefore held in Roseboom v. Villington, 17 Johns. 181, that to make such indorsement admissible it must be proven to have been made before the presumption of payment attached. Nothing less has been required from the day of that decision to the present time, and the case is decisive in favor of this appeal. The note then in suit was dated on the 9th of January, 1808, payable in two years. An action was brought upon it in 1817, and the statute of limitations was interposed as a defense. Upon the trial the plaintiff offered to prove an indorsement on the note in his own handwriting, dated October 18, 1811, acknowledging the receipt of $30 in part payment of the note. This was objected to, and excluded. The defendant had a verdict, and the plaintiff brought a writ of error. SPENCER, C. J., states the question to be ‘whether an indorsement of a payment on a promissory note, in the handwriting of the payee, without any other evidence of the fact of payment, ought to have been submitted to the jury, as proof of the payment, and thereby to take the case out of the operation of the statute of limitations;’ and, after a discussion of the matter upon principle and authority, says: ‘An indorsement, therefore, on a bond or note, made by the obligee or promisee, without the privity of the debtor, cannot be admitted as evidence of payment in favor of the party making such indorsement, unless it be shown that it was made at a time when its operation would be against the interest of the party making it. If such proof be given, it would, I...