Millwee v. Jay
| Decision Date | 01 August 1896 |
| Citation | 25 S.E. 298,47 S.C. 430 |
| Parties | MILLWEE v. JAY et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Abbeville county; Benet Judge.
Action by M. C. Millwee against David W. Jay, in his own right, and as surviving partner of the firm of Bradley & Jay, and John E. Bradley and others, as executors of the will of William K Bradley, deceased. Judgment of nonsuit, from which plaintiff appeals. Affirmed.
Graydon & Graydon, for appellant.
Cothran Perrin & Cothran, for respondents.
For a proper understanding of the questions raised by this appeal it will be necessary to make a somewhat fuller statement of the pleadings in this action, which was commenced on the 15th of January, than is usual in cases like this. The plaintiff, in the first paragraph of her complaint, alleges that on the 31st of July, 1875 (which is manifestly a misprint for 1873), the testator, William K. Bradley, and the defendant David W. Jay were doing business as partners in trade under the firm name of Bradley & Jay. In the second paragraph the allegation is that on the 31st day of July, 1875 (again manifestly a misprint for 1873), the said Bradley & Jay made and delivered to one A. L. McCaslan their note under seal whereby they promised to pay said A. L. McCaslan or bearer, one day after said date, the sum of $250, interest at the rate of 12 per centum per annum. In the third paragraph plaintiff alleges that on the 7th day of July, 1874, the said Bradley & Jay made a promise to pay the amount specified in said note by paying to the plaintiff the sum of $25, and having the same credited on said note. In the fourth paragraph the allegation is that on the 11th of May, 1880, the said Bradley & Jay made a new promise to pay what was due on said note by paying to the plaintiff the sum of five dollars, and having the same credited on said note. In the fifth paragraph the allegation is that the said William K. Bradley, some time during the year 1882, died, leaving a will, by which the defendants named as such were appointed the executors thereof; and in the sixth paragraph it is alleged that the persons named as such duly qualified as executors of the will of the said William K. Bradley. In the seventh paragraph it is alleged that on the 8th of January, 1883, the said defendants made a new promise to pay to the plaintiff the amount due on said note by paying to the plaintiff the sum of $400, and having the same credited on the said note. The allegation in the eighth paragraph is that on the 7th day of January, 1889, the defendants named as executors of the will of William K. Bradley made a new promise to pay what was due on said note to the plaintiff by paying to the plaintiff the sum of five dollars, and having the same credited on the said note. In the ninth paragraph it is alleged that the defendant David W. Jay, on the 5th of December, 1883, made an acknowledgment in writing that the debt evidenced by said note was due. In the tenth paragraph the allegation is that said David W. Jay, on the 4th of January, 1894, made a similar acknowledgment in writing. In the eleventh paragraph it is alleged that on the 24th day of November, 1893, the defendants named as executors made a similar acknowledgment in writing. In the twelfth paragraph it is alleged that the plaintiff is now the legal owner and holder of said note, and that no part thereof has been paid, except as above stated. To this complaint the defendant David W. Jay and the executors of William K. Bradley filed separate answers, but, as they set up the same defenses, the answer of Jay is the only one set out in the "case." In that answer the allegations made in the first, fifth, and sixth paragraphs of the complaint are admitted, but, as those allegations relate only to the partnership formerly existing between W. K. Bradley and David W. Jay, to the death of Bradley, and the appointment and qualification of his executors, they have no bearing upon the points raised by this appeal. In the second paragraph of the answer all the other allegations of the complaint are distinctly denied. The third paragraph of Jay's answer is in these words: "That the note referred to in the complaint was a sealed note, signed in the firm name by the defendant D. W. Jay, without previous authority or subsequent ratification on the part of W. K. Bradley, and was at no time binding upon any one but the defendant D. W. Jay in his individual capacity." In the fourth paragraph of the answer it is alleged that the payment on said note referred to in the third paragraph of the complaint was made by the defendant D. W. Jay. In the fifth paragraph of the answer the same allegation is made as to the payment referred to in the fourth paragraph of the complaint. In the sixth paragraph of the answer a similar allegation is made as to the payment referred to in the seventh paragraph of the complaint. The answer set up as a defense to each and all of plaintiff's alleged causes of action the statute of limitations. The answer also set up as a defense by way of counterclaim, certain demands in the form of open accounts existing in favor of Bradley & Jay against A. J. McCaslan, the payee of the note above referred to, before and at the time he transferred said note to plaintiff; but, as these matters do not seem to affect the points raised by this appeal, they need not be further referred to.
The note above referred to, upon which the several payments referred to in the complaint were indorsed, was offered in evidence, but there was not testimony tending to show who signed the name of Bradley & Jay to that note, nor was there any testimony adduced tending to show that W. K. Bradley had ever in any way either recognized or affirmed or ratified the contract purporting to have been made by said note, nor to show that the proceeds of such note ever inured to the benefit of W. K. Bradley, of Bradley & Jay. What such note was given for, or by whom it was made, is not disclosed by the testimony, except that Jay, in his answer, says that he signed the name of Bradley & Jay to the note; but at the same time he says that he did so "without previous authority or subsequent ratification on the part of W. K. Bradley, and was at no time binding upon any one but the defendant D. W. Jay in his individual capacity." The only witness introduced by the plaintiff was Dr. W. B. Milwee, the husband of the plaintiff, and his testimony is set out at length in the "case," but it is too long for insertion here; and, indeed, under the view which we take of the case, we do not regard his testimony as material. Plaintiff introduced certain letters of D. W. Jay and W. K. Bradley as evidence of the several acknowledgments referred to in the ninth, tenth, and eleventh paragraphs of the complaint, and for the same purpose, against the objection of defendants, was permitted to introduce a letter of J. E. Bradley, which was not referred to in the complaint. The case was heard by his honor, Judge Benet, who, at the close of the testimony in behalf of the plaintiff, granted a motion for a nonsuit by an order which is set out in the "case," which should be incorporated in the report of this case. From this order the plaintiff appeals upon the several grounds set out in the record, which should likewise be incorporated in the report of this case.
We do not propose to consider these grounds seriatim, but will rather proceed to consider and determine what we regard as the controlling questions presented by the appeal. If the plaintiff's cause of action in this case should be regarded as the breach of a promise evidenced by the note under seal, then the action would be clearly barred by the statute of limitations; for, as the law stood at the time when such promise was made,--31st of July, 1873,--an action for the breach of a promise, evidenced by a note under seal was barred if not commenced within 20 years after the right of action accrued. Code 1870. Now, in this case the right of action for the breach of the promise evidenced by the note manifestly accrued in August, 1873, the amount mentioned in the note being payable one day after the date thereof (31st July, 1873), and such an action was barred in August, 1893,--more than a year before this action was commenced,--and hence beyond all question the plea of the statute of limitations was a bar to the action for the breach of the promise evidenced by the note. If, however, this action should be regarded, as was doubtless intended, as an action on the new promises implied by the several payments set out in the complaint, or by the alleged acknowledgments therein set out, then it becomes necessary to inquire whether the action was barred by the statute on any or all of the new promises implied by such payments, or acknowledgments. First as to the payments, it will be observed that all of these payments were made after the amendment of the original Code of 1870 by the act of 25th November, 1873 (the first of these payments having been made on the 7th of July, 1874), whereby the period within which...
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