Whitney v. Reese

• Decision Date: 01 January 1865
• Citation: 11 Minn. 87
• Parties: ELISHA D. WHITNEY et al. vs. REESE & HEYLIN.
• Court: Minnesota Supreme Court

11 Minn. 87

ELISHA D. WHITNEY et al.vs.

REESE & HEYLIN.

Supreme Court of Minnesota.

Error to district court, Ramsey County.

Lorenzo Allis, for plaintiffs in error.

H. L. Moss, for defendant in error.

McMILLAN, J.

This action is brought upon the joint promise of the defendants as partners. The plaintiffs therefore must prove the joint contract, and recover against both defendants, or they cannot recover at all. Fetz v. Clark et al. 7 Minn. [217]. By the finding of the referee, it appears that for some time prior to January 1, 1847, but not afterwards, the defendants were partners under the firm name of Reese & Heylin; that about the eleventh day of November, 1845, the defendants at Philadelphia, executed to the plaintiffs their certain promissory note for $1,358.38, in consideration of goods and merchandise sold to them by the plaintiffs. That about the twenty-eighth day of April, 1846, the defendants at said city of Philadelphia, in consideration of the loan and advance of moneys to them by the plaintiffs, executed to the plaintiffs their certain other promissory notes for the sum of $300, both of which notes are held and owned by the plaintiffs, and that after the maturity of each of said notes, and prior to the twenty-first day of April, A. D. 1854, more than six years elapsed; that by the laws of Pennsylvania in force in said state on the eleventh day of November, 1845, and still in force in said state, it is provided that all actions upon the case, debt, or promissory note, shall be commenced and sued within six years next after the cause of action shall have accrued, and not after; that all the parties, plaintiffs and defendants in this action, were during all the time aforesaid, and still are, residents of the said city of Philadelphia, and that the complaint in this action was filed, and the summons issued, on the fifth day of September, 1862; that on the twenty-first day of March, 1851 the defendants made and delivered to the plaintiffs a paper-writing in the words and figures following, viz.:

                                  "PHILADELPHIA, March 21st, 1851
                

"Gentlemen: — You are hereby authorized to compromise with Charles Hoyt, Esq., for his acceptance dated May 11, 1846, for $394.94, which you now hold as collateral on our debt. We hereby agree that the balance of said draft and interest shall be charged against us.

                                                 "REESE & HEYLIN
                

"To Messrs. Whitney, Scholt & Co."

And that afterwards and on the twenty-first day of April, A. D. 1854, at said city of Philadelphia, the defendant Heylin made and delivered to said plaintiffs, a certain other paper-writing in the following words and figures, viz.:

                                     "PHILADELPHIA, April 21, 1854
                

"Messrs. Whitney, Scholt & Co.:

Gentlemen: — We hereby agree that the balance due from the undersigned to your house shall not be barred by the statute of limitations. $2,365.66.

                                   "REESE & HEYLIN, in liquidation
                                              "By J. B. HEYLIN."
                

The plaintiffs' action is barred by the statute of limitations, unless, as the plaintiffs claim, the writing of March 21, 1851, or April 21, 1854, takes the case out of the statute, and prevents its operation against the claim. We are then to consider the effect of these instruments in the order of their date. We come therefore to the writing of March 21, 1851. Is this such an acknowledgment of, or promise to pay, the plaintiffs' debt, as to take the case out of the statute? We think it is not. Our statute upon this subject is as follows: "No acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby." Comp. Stat. ch. 60, § 23. Without going into a review of the authorities upon this point, our examination of the subject leads us to the conclusion that the weight of modern decisions establishes this as the rule on this subject: That there must be either an express promise, or an acknowledgment expressed in such words, and attended by such circumstances, as give to it the meaning, and therefore, the force and effect, of a new promise. 2 Parsons Cont. 347-8, and authorities cited; Bell v. Morrison, 1 Pet. 362; Allen v. Webster, 15 Wend. 286; Stafford v. Richardson, id. 306. And in the case of an acknowledgment or implied promise, there should be a direct recognition of the indebtedness sued on, from which a willingness to pay the same may be reasonably implied. 2 Parsons Cont. 349; Stafford v. Bryan, 3 Wend. 532; Clarke v. Dutcher, 9 Cow. 674; Suter v. Sheeler, 10 Har. 308; Yaw v. Kerr, 47 Penn. St. 334; Woodbridge v. Allen, 12 Met. 470; Bell v. Morrison, 1 Pet. 362; Sands v. Gelston, 15 Johns. 511; Bailey v. Crane, 21 Pick. 323; Angell on Lim. ch. 21, §§ 4 and 5.

In Bell v. Morrison, cited ante, Justice Story says: "If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt which the party is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay, if...