Taylor v. Slater

• Decision Date: 28 January 1888
• Citation: 12 A. 727,16 R.I. 86
• Parties: TAYLOR v. SLATER et al.
• Court: Rhode Island Supreme Court

12 A. 727

16 R.I. 86

TAYLOR

v. SLATER et al.

Supreme Court of Rhode Island.

January 28, 1888.

On demurrer to bill.

Bill in equity, on behalf of Maria L. Taylor, a married woman, against John W. Slater, as executor of the will of William S. Slater, deceased, and others, for an account, and to obtain payment of two promissory notes.

John F. Lonsdale and Walter H. Barney, for complainant. Charles Hart and Charles P. Robinson, for defendants.

MATTESON, J. This is a bill filed in behalf of a married woman, by her next friend, to obtain payment of two promissory notes from the estate of William S. Slater, deceased, who in his life-time was a member of the firm by whom the notes were made. The bill alleges that August 3, 1872, the complainant's husband, Frank C. Taylor, John M. Wright, the said William S. Slater, deceased, and Earl P. Mason, also deceased, were engaged in business in Chicago as copartners under the name and style of Taylor & Wright; that on that date said firm made, indorsed, and negotiated at the Fourth National Bank of Chicago their negotiable promissory note of that date for $25,000, payable to the order of themselves, at said bank, on demand, for value received, with interest at 10 per cent. till paid; that the firm received the proceeds of said note, and that, two days later, the trustee of the complainant's separate estate, by her direction, purchased said note with funds belonging to her separate estate; that, shortly after giving said note, said firm failed in business, and the said Frank C. Taylor and the said John M. Wright became insolvent, and have ever since remained and now are insolvent, and unable to pay said note, and without property on which process or execution could be levied; that on or about January 1, 1874, said firm gave her another note of that date, by them signed as "Taylor and Wright in liquidation," in and by which they promised to pay to the order of themselves, on demand, $3,569.45, with interest at 10 per cent. per annum till paid, value received, which note was by said firm indorsed and delivered to the complainant as interest on said note for $25,000, and was indorsed thereon, such indorsement being in the words and figures following, viz.: "$3,569.45, interest on the within to January 1, '74, paid by note dated January 1, '74, on demand;" that, except the giving of said last-mentioned note, no portion of either of said notes, principal or interest, has been paid, but said notes, with interest thereon from their respective dates, according to the tenor thereof, are still outstanding and unpaid in the hands of the complainant; that the complainant married her present husband, said Frank C. Taylor, June 9, 1864; that said Earl P. Mason deceased on September 21, 1876, and the said William S. Slater, May 28, 1882; that said Slater left a will, in which the respondent, John W. Slater, was appointed executor, and which was probated on the ——— July, 1882; that an appeal was taken from the probate of said will, but the decree probating the same was confirmed by this court on the second day of the October term, 1882; that said John W. Slater duly qualified himself as such executor; that demand was made upon said William S. Slater, in his life-time, for the payment of said notes, and has been made since his decease upon said executor, but that each has neglected and refused to make such payment. The bill was filed January 12, 1884. It was originally against the said John W. Slater, in his capacity as executor of said will, and the said Taylor, and the said Wright. Subsequently it was amended by joining as respondents the legal representatives of the said Earl P. Mason. Said executor and said legal representatives have demurred generally to the bill, and, upon the hearing, orally assigned, among other grounds of demurrer, that the claim was barred by the statute of limitations. It was conceded on the part of the complainant that, inasmuch as the statute had begun to run upon the original note before it came into her possession, its running would not be suspended by reason of her being a married woman; but it was contended that the giving of the second note in payment of the interest upon the first created a new cause of action, not only on the new note so given, but also upon the original note, and that, as such new cause of action accrued to her while under disability, the statute would not run against it so long as the disability continued; and hence, as she had remained a married woman down to the filing of the will, the claim is not barred.

The question whether a new promise to pay a debt already barred by the statute creates a new cause of action, so that suit must be brought upon it instead of the original contract, has given rise to considerable diversity of opinion. On the one hand, it has been held, in a number of cases, that such new promise is a new cause of action, and that suit must be brought upon it, and not upon the original promise. Reigne v. Desportes, Dud. (S. C.) 118, 123, 130; Martin v. Broach, 6 Ga. 21, 31-35, 50 Amer. Dec. 306, 311-315, but doubted in Rich v. Dupree, 14 Ga. 661, 664; Bird v. Adams, 7 Ga. 505, 508; Van Buren v. Webster, 12 Ga. 615, 617; Coles v. Kelsey, 2 Tex. 541, 546-550, 47 Amer. Dec. 661, 666, 667; Erskine v. Wilson, 20 Tex. 77, 81; Kampshall v. Goodman, 6 McLean, 189, 192, 193; Hopkins v. Stout, 6 Bush, 375, 378; Carr's Ex'r v. Robinson, 8 Bush, 269, 274; Trousdale v. Anderson, 9 Bush, 276, 277. In these cases the court proceed upon the theory that the debt is extinguished by the statute; but inasmuch as it has been extinguished by operation of law, instead of by the act of the parties, a moral obligation to pay it remains, and this moral obligation is a sufficient consideration for the new promise. On the other hand, it has been held in numerous cases that the statute does not extinguish the debt, but only bars the remedy; that the new promise simply removes the bar of the statute, thereby enabling the plaintiff to recover upon the original contract, and does not create a new cause of action which can be made the basis of a suit and judgment. Leaper v. Tatton, 16 East, 420; Upton v. Else, 12 Moore, 303; Lord v. Shaler, 3 Conn. 131, 134; Barney v. Smith, 4 Har. & J. 485, 495; Oliver v. Gray, 1 Har. & G. 204, 215; Kimmel v. Schwartz, 1 Breese, 278, 280; Newlin v. Duncan, 1 Har. (Del.) 204, 207, 208; Ilsley v. Jewett, 3 Metc. 439, 444, 445; Philips v. Peters, 21 Barb. 351, 357, 358; Esselstyn v. Weeks, 12 N. Y. 635, 637; Yaw v. Kerr, 47 Pa. St....