Thompson v. Reed

• Decision Date: 13 September 1883
• Citation: Thompson v. Reed, 75 Me. 404 (Me. 1883)
• Court: Maine Supreme Court
• Parties: HUMPHREY P. THOMPSON and another, v. JAMES T. REED and Trustees.

75 Me. 404

HUMPHREY P. THOMPSON and another, v. JAMES T. REED and Trustees.

Supreme Judicial Court of Maine.

September 13, 1883

ON REPORT.

Assumpsit upon a promissory note given by the defendant to the plaintiffs, March 31, 1866, and on an account for money loaned at New York in the summer of 1866. The plea was the general issue and statute of limitations. At the trial the defendant consented to be defaulted in the sum of $1487.11 with leave to report the case to the full court, who were to determine from the evidence introduced and offered whether the action is barred. If barred the default is to be taken off and plaintiffs nonsuited, otherwise judgment on the default.

The material facts are stated in the opinion.

William L. Putnam and Joseph M. Trott, for the plaintiffs, cited: Dwight v. Clark, 7 Mass. 517; Little v. Blunt, 16 Pick. 359; Crosby v Wyatt, 23 Me. 164; Crehore v. Mason, 23 Me 416; Brown v. Nourse, 55 Me. 230; Hacker v Everett, 57, Maine, 548; Alden v. Goddard, 73 Me. 346; Putnam v. Dike, 13 Gray 535; Bulger v Roche, 11 Pick. 36; Thibodeau v. Levassuer, 36 Me. 362; Johnson v. Railroad Co. 54 N.Y. 416.

C. W. Larrabee, for the defendant.

It is recognized doctrine that the old English statute of limitation barred the remedy only and not the right, but modern statutes cut off the right as well as the remedy. Dundee v. Dougall, 1 Macq. H. L. Cas. 317; DeBeauvoir v. Owen, 5 Exch. 166; 19 L. J. Exch. 177.

In Higgins v. Scott, 2 Barn. & Ad. 413, the doctrine per curiam, is simply that the statute of limitation bars the remedy and not the debt. The dictum rests mainly on Lord ELDEN in Spears v Hartly, 3 Esp. 81, which, if examined, will be found to turn on the maintenance of a lien by possession. See also Rothery v. Munnings, 1 Barn. & Ad. 15, which makes no distinction between the extinction of remedy and of debt. True our court in Brown v. Nourse, 55 Me. 230, recognized this distinction. The point is dismissed as res judicata, citing Brigham v. Bigelow, 12 Met. 270. But in the latter case the principal question was whether the R. S., which went into operation after the cause of action accrued, should be applied.

All enactments of limitations by the legislature declare what shall be a bar-- after a certain number of years have elapsed from the time the cause of action accrued no action shall be maintained. The rights of the parties are measured by the lapse of time passed. So when the parties find that by the laws of the state where both reside that the right of action has become barred, that there is no longer any remedy in the courts of that state and the debtor has been liberated by force and virtue of the law, it is not an easy matter to see the difference between giving the party plaintiff a remedy under the lex fori and rehabilitating his dead and comatose cause and giving it a new life. There has been as much judicial flirtation on this question as any in the books. Wright v. Oakley, 5 Met. 400; LeRoy v. Crowninshield, 2 Mason 151; Shelby v. Guy, 11 Wheat. 361; Varney v. Grows, 37 Me. 306; Whitney v. Goddard, 20 Pick. 304.

The plaintiff is not within the saving terms of R. S., c. 81, § 99, neither by its language nor by the intendment of the act.

VIRGIN J.

The statute of limitations is no bar to an action brought in this State on a promissory note made and payable in another State, although the parties continued to reside there until any action thereon was barred by the statute of that State.

It is the universally acknowledged rule of law that contracts are to be construed according to the law of the place where they are made and to be performed, but that they are to be enforced according to the lex fori. And it is now well settled by the great current of authority that as the statute of limitations operates merely upon the remedy, it is consequently local in its operation and the law of the place where the remedy is sought and not that of the situs of the contract, must control. Leroy v. Crowninshield, 2 Mason 151; Tribodeau v. Lavassuer, 36 Me. 362; Townsend v. Jemison, 9 How. 407; Brown v. Nourse, 55 Me. 230. Some of the states have statutory provisions allowing the interposition of the statute bar of another state where the defendant had resided for the requisite period. Thus Massachusetts, in 1880, enacted a statute providing in substance that no action shall be brought by any person whose cause of action has been barred by the laws of any state, territory or country while he has resided therein. Pub. stat. c. 197, § 11. But the statutes of this state contain no provision of like character.

The provision of the statute under which the plaintiffs seek to maintain this action is: " If any person is out of the state when a cause of action accrues against him, the action may be commenced within the time limited therefor after he comes into the state," R. S., c. 81, § 99. There being no plea to the jurisdiction but a general appearance by the defendant, we assume no question of that kind would arise on the real facts although not disclosed by the case as reported. The case does find that both the plaintiffs and defendant resided in New York when and where the note was made and by its terms to be paid, and the account accrued, and continued to reside there until 1875; and that the defendant has resided there ever since the dealings between the parties recited by both note and account. Under these circumstances notwithstanding an action on the note and account would be barred in New York, this action is not barred here. Bulger v. Roche, 11 Pick. 36; Putnam v. Dike, 13 Gray 535.

Nor does the fact that the defendant had property in this state for eleven months next after the note was given aid the defendant. (1,) Because it does not appear that the plaintiffs knew the fact or could be charged with knowledge through due diligence. Crosby v. Wyatt, 23 Me. 156, 164; Little v. Blunt, 16 Pick. 359; and (2,) because it is immaterial even if such fact were known to the plaintiffs.

R. S c. 81, § 99, as originally enacted, provided that if any person...