Monidah Trust v. Kemper
| Decision Date | 30 October 1911 |
| Citation | 118 P. 811,44 Mont. 1 |
| Parties | MONIDAH TRUST v. KEMPER. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Action by the Monidah Trust against S. V. Kemper. From a judgment for defendant, plaintiff appeals. Affirmed.
Jas. E Murray and Jas. E. Healy, for appellant.
Maury & Templeman and J. O. Davies, for respondent.
On November 20, 1893, Albert B. Knight, S. V. Kemper, and C. F Booth executed and delivered to James A. Murray their joint and several promissory note for $1,000, due six months after date. In March, 1905, the note was sold and transferred by Murray to this plaintiff, and on July 18, 1910, this action was brought to enforce payment. The complaint sets forth the facts of the execution and delivery of the note, the transfer of it by Murray to the plaintiff, and alleges that no part of the principal or interest has ever been paid, except certain payments made during 1893 and 1894, which payments appear to equal the amount of interest due during those years: $60 paid in 1895; $1.50 paid in 1901; $14 paid in 1904; and $149.50 paid in 1906. Kemper was the only defendant served with process, and he appeared and answered, admitting the execution and delivery of the note, denying the other allegations of the complaint, and pleading the bar of the statute of limitations. Upon the trial, the plaintiff proved the transfer and nonpayment of the note. Respecting the partial payments made prior to July 5, 1895, there is not any evidence, but it was made to appear that every subsequent payment was made by the defendant Knight or by his personal representative. Defendant Kemper, in his own behalf, testified that he had never made any payment upon the note, had never authorized any one for him to make a payment, and never knew that any payments had been made, until informed by Mrs. Knight shortly before this action was commenced, and some three years after the last payment was made. There was not any showing of ratification by Kemper of the acts of Knight or his personal representative. Upon these facts the court found for defendant Kemper, and rendered judgment accordingly. From that judgment, the plaintiff has appealed, and presents for our determination the single question: May one joint debtor, by making part payments, suspend the running of the statute of limitations as to his joint obligors who do not authorize or ratify such act? The same question has been before the courts many times.
The first English statute of limitations was adopted in 1632 (21 James I, c. 16). In 1781, when this question came before the English court, in Whitcomb v. Whiting, 2 Doug. 652, the question was answered in the affirmative. Lord Mansfield, speaking for the court, said: "Payment by one is payment for all, the one acting virtually as agent for the rest; and in the same manner an admission by one is an admission by all; and the law raises the promise to pay when the debt is admitted to be due." This doctrine was followed by the English courts for several years, though often criticised. Brandram v. Wharton, 1 B. & A. 463; 19 Am. & Eng. Ency. of Law (2d Ed.) 308; Greenleaf on Evidence (15th Ed.) 112, and note. In some of the American states, the doctrine was repudiated altogether; in others it was adopted and followed until changed by statute; but so unfavorably was it received that in most of our states it has been obliterated by statutory provision, until it is now recognized only in Connecticut, New Jersey, Rhode Island, Delaware, and possibly one or two other states.
In 1828 the English Parliament passed Lord Tenterden's act (9 Geo. IV, c. 14), which provided that the acknowledgment by one joint obligor should not operate to suspend the running of the statute as against his nonconsenting co-obligor. But this still left the fact of part payment to operate as theretofore declared in Whitcomb v. Whiting. However, in 1856, Parliament again amended the statute of limitations by the mercantile law amendment act (19 & 20 Vict. c. 97), which completely reversed the doctrine in Whitcomb v. Whiting, and since the latter date the doctrine of that case has not been invoked in England. Some of our American statutes were modeled after Lord Tenterden's act, some after the mercantile law amendment act, and many of them contain the substance of both of the English statutes. Under Lord Tenterden's act, the English courts held uniformly that the written acknowledgment of the debt bound only the obligor making such acknowledgment, but did not affect the nonconsenting co-obligor, and the same ruling has been had in the states having similar statutes.
Under section 53, first division, Compiled Statutes of 1887, which reads: "No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this act, unless the same is contained in some writing signed by the party to be charged thereby; but this act shall not alter the effect of any payment of principal or interest"--this court, in First Nat. Bank v. Bullard, 20 Mont. 118, 49 P. 658 and in Oleson v. Wilson, 20 Mont. 544, 52 P. 372, 63 Am. St. Rep. 639, held that part payment by one joint debtor does not operate to suspend the running of the statute as to his nonconsenting co-obligor. In Bank v. Bullard, the part payment appears to have been made by one surety, and it was sought to bind his cosurety thereby, and...
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