Schindel v. Gates

• Decision Date: 13 June 1877
• Citation: 46 Md. 604
• Parties: LEWIS SCHINDEL v. CHRISTIAN GATES.
• Court: Maryland Court of Appeals

46 Md. 604

LEWIS SCHINDEL v. CHRISTIAN GATES.

Court of Appeals of Maryland

June 13, 1877

APPEAL from the Circuit Court for Washington County.

This suit was instituted by the appellee on the 4th day of February, 1876, against Jonathan Middlekauff and the appellant, to recover the amount of a joint and several promissory note for $765.00, dated March 31, 1866, payable in one year with interest, from date, signed by Jonathan Middlekauff, and the appellant, Lewis Schindel.

At the trial, Schindel pleaded non-assumpsit, limitations, and that he was the mere surety for Middlekauff, and gave him no authority to do any act so as to revive the note against him and thereby defeat his plea of limitations.

Issue was joined on the first two pleas, and a demurrer interposed to the third plea, which demurrer was sustained by the Court.

The case as against Schindel was tried before the Court, (MOTTER J.)

First Exception.--The plaintiff, to sustain the issues on his part joined, gave in evidence the note sued on in this case, and the counsel of the defendant admitted that the signatures to said note were genuine. The plaintiff then proved by himself, that he got said note at the office of Mr Wiles, his attorney, who had collected some money for him and as his attorney, and at his request, had re-invested the same for him, the plaintiff, in the said note, and had received said note as attorney for the plaintiff, and that said Wiles gave the note to the plaintiff some time after its execution, and that the plaintiff never personally knew the defendant Lewis Schindel.

And then further to support the issues joined on his part, offered to prove by the plaintiff, that said Jonathan Middlekauff, in each and every year since the making of said note, up to April 1st, 1874, had paid the interest due on said note as said interest became due, and said Jonathan Middlekauff, on April 1st, 1874, promised to pay said note to the plaintiff. The defendant, Lewis Schindel, objected to the said evidence so offered, but the Court overruled the objection and admitted the evidence. The defendant excepted.

Second Exception.--The defendant further to prove the issue on his part joined, offered to prove by the plaintiff, that at the time he accepted the note offered in evidence, he, the plaintiff, knew that Jonathan Middlekauff was principal debtor, and that Lewis Schindel was surety on said note: and the plaintiff, by his counsel, objected, and the Court sustained the objection. The defendant excepted.

Third Exception.--After the evidence in the aforegoing bills of exceptions had been introduced, the plaintiff offered the following prayer.

1. That if the Court finds from the evidence in the cause that the note sued on was executed and delivered by Jonathan Middlekauff and Lewis Schindel to the plaintiff, and that the said Jonathan paid the interest on said note, from the maturity thereof, annually to the plaintiff, and up to April 1, 1874, and that the said Jonathan, on the 1st April, 1874, before the institution of the suit, promised to pay the said note to the plaintiff, then the Statute of Limitations, as pleaded, is no defence in this action.

And the defendant offered the four following prayers.

1. This defendant, Lewis Schindel, by his counsel, prays the Court to say, that if the Court finds from the evidence that the plaintiff is the payee and holder of the note offered in evidence, and that the plaintiff got the said note at Mr. Wiles', his attorney's, office, and that the plaintiff never personally knew this defendant, and that said note became due on the 31st day of March, 1867, and that this defendant made said note jointly with Jonathan Middlekauff, and that the said Jonathan Middlekauff paid the interest on said note every year up to April 1st, 1874, and said Middlekauff on April 1st, 1874, promised to pay said note to the plaintiff, then on the pleadings in this case, the plaintiff is not entitled to recover, unless the Court further find from the evidence that this defendant, Lewis Schindel, at some time within three years before the bringing of this suit, acknowledged said note, or authorized said Jonathan Middlekauff to make said payments, or any of them, or ratified the making of said payments, or any of them.

2. This defendant, Lewis Schindel, by his counsel, prays the Court to say, that if the Court finds from the evidence that the plaintiff is the payee and holder of the note offered in evidence, and that the plaintiff got said note at the office of Mr. Wiles, his attorney, and that the plaintiff never personally knew this defendant, and that said note became due on the 31st of March, 1867, and that this defendant made said note jointly with Jonathan Middlekauff, and that said Jonathan Middlekauff paid the interest on said note every year up to April 1st, 1874, and said Middlekauff, on April 1st, 1874, promised to pay said note to the plaintiff, then on the pleadings in this case, the plaintiff is not entitled to recover, unless the Court further find from the evidence that this defendant, Lewis Schindel, at some time within six years before the bringing of this suit, acknowledged the said note, or authorized said Jonathan Middlekauff to make said payments, or any of them, or ratified the making of said payments, or any of them.

3. This defendant, Lewis Schindel, by his counsel, prays the Court to say in this case, that said Jonathan Middlekauff had no authority, only and solely from the fact that he was the joint maker with this defendant, Lewis Schindel, of the note sued on in this case, to bind this defendant Lewis Schindel, by any acknowledgment of said note, or by any promise to pay said note, or by any payment on said note, made by him, the said Jonathan Middlekauff, more than three years after the maturity of said note.

4. This defendant, Lewis Schindel, by his counsel, prays the Court, that if the Court find from the evidence, that Jonathan Middlekauff and Lewis Schindel made the note offered in evidence, and that from the time of its maturity to the year 1874, inclusive, the said Middlekauff annually paid the interest on said note, and frequently promised to pay the principal, nevertheless the plaintiff is not entitled to recover under the pleadings in this cause, unless the Court further find that Lewis Schindel personally authorized or ratified said payments or promises, or any of them, or himself promised to pay said note, or himself acknowledged the debt evidenced by said note, within three years before the bringing of said suit. And the Court granted the plaintiff's prayer, and rejected the defendant's prayers. The defendant, Lewis Schindel, excepted.

A judgment was entered for the plaintiff, and the defendant appealed.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, J.

Tryon Hughes Edwards and Louis E. McComas, for the appellant.

In regard to the power of one joint maker of a note to deprive the other of the defence of the statute, three distinct and irreconcilable theories are found.

The First. That there is such a power, and that it exists indefinitely. Channell vs. Ditchburn, 5 Mees. and Wells., 494; Goddard vs. Ingram, 3 Gale and David, 46.

(Both of these cases are specially repudiated in Ellicott vs. Nichols, 7 Gill, 105, 106)

Whitcomb vs. Whiting, as construed by the English cases, was a departure from the letter and spirit of the Statute of Limitations.

In England this interpretation of the statute has been partly corrected by 9 George IV, ch. 14, sec. 1, (Lord Tenterden's Act,) and entirely by the Mercantile Law Amendment Act of 1858, 19 and 20 Vict., ch. 97, sec. 14.

Since which Acts no co-contractor can bind the other by virtue of any promise, acknowledgment or payment of interest or principal. Smith's Lead. Cas., (7 th Ed.,) vol. 1, part 2, pages 942, 945, 980 and 981; American Notes to Whitcomb vs. Whiting.

In Massachusetts, where this theory was once accepted, ( Vid. White vs. Hale, 3 Pick., 292,) it has been repudiated by statute.

(That case, White vs. Hale, has itself been overruled by Sigourney vs. Drury, 14 Pick., 391;) Sm. Lead. Cas., Ibid, 984 and 985.

In Maine, also, where the doctrine was held, it has been changed by the revised statutes. Sm. Lead. Cas., Ibid, 981.

So, too, in Vermont. Rev. Stat., ch. 28, secs. 22-27.

The Second. That there is no such power.

This second theory is held in Supreme Court U.S., Bell vs. Morrison, 1 Peters, 351; in New Hampshire, Exeter Bank vs. Sullivan, 6 N. H., 124; in Ohio, Palmer vs. Dodge, 4 Ohio N. S., 21-36; in Pennsylvania, in a series of well considered cases: Coleman vs. Fobes, 22 Pa. St., (10 Harris,) 156; Levy vs. Cadet, 17 Serg. & R., 126; Searigh vs. Craighead, 1 Penn. Rep., 135; Howser vs. Irvine, 3 Watts & S., 345; Schoneman vs. Fegley, 7 Barr., 433; Bush vs. Stowell, 71 Pa. St., 208; Reppert vs. Colvin, 48 Pa. St., 248.

In New York, where the first theory was adopted in the earlier cases, it has been entirely repudiated, and this second doctrine is now maintained, in cases very ably reasoned. Vankeuren vs. Parmalee, 2 N. Y., ( Comstock,) 523; Payne vs. Slete, 39 Barbour, 634; Shoemaker vs. Benedict, 11 N. Y., 176; Winchell vs. Hicks, 18 N. Y., 558; Dunham vs. Dodge, 10 Barbour, 556.

Wherein it is said that a part payment by one co-contractor will not bind the other, whether such acknowledgment be made before or after the bar of the Statute.

And see the cases cited: Sm. Lead. Cas., Ibid, 982 and 983.

And the latest case, Layberry vs. Willoughby, Nebraska Sup. Ct., January T., 1877.

The Third. (A middle ground.) That there is such a power, but that it ends when the legal term prescribed by the statute has elapsed.

This doctrine rests "on the ground that the common...