Willoughby v. Irish

• Decision Date: 09 March 1886
• Citation: 27 N.W. 379,35 Minn. 63
• Parties: WILLOUGHBY v IRISH AND ANOTHER.
• Court: Minnesota Supreme Court

35 Minn. 63

27 N.W. 379

WILLOUGHBYvIRISH AND ANOTHER.

Supreme Court of Minnesota.

Filed March 9, 1886.

Appeal from an order of the district court, Washington county.

Ingersoll & Ovitt, (H. B. Wenzel, of counsel,) for appellant, John Willoughby.

Uri L. Lamprey, for respondents, Joseph Irish and another.

VANDERBURGH, J.

Willoughby held the joint note of Shelton and Irish, Shelton being the principal debtor. The latter, before the statute of limitations had run, made partial payments upon the note, acting severally for himself. Plaintiff has brought this action against both joint makers, claiming that the separate payments of Shelton arrested the operation of the statute alike as to both. The defendant Irish has answered, setting up the statute as a bar to plaintiff's claim. The question is therefore fairly presented for the first time for determination in this court, under the present statute, whether a partial payment by one of several joint debtors before a note is barred by the statute, and within six years before suit brought, takes the case out of the operation of the statute as to all the joint debtors, or only as to the one who makes such payment.

Under the provisions of the statute then existing (Comp. St. 1858, c. 60, § 24) in relation to partial payments, this court held in Whitaker v. Rice, (1864,) 9 Minn. 20, (Gil. 1,) that the effect of such payment made after the debt became due, and before the statute had run, “prevents any interruption of the obligation originally assumed;” and hence the operation of the limitation act being suspended by the payment, the debt was kept alive, and remained in full force as respects all the debtors or obligors originally liable. This construction arose from the peculiar frame of the statute, and was based upon the old doctrine of presumptions. That is to say, the presumption of payment arising from lapse of time is rebutted by the acknowledgment or part payment of the debt, and the effect thereof is to continue the original debt as a subsisting obligation. The later construction, and present policy of the law is otherwise. Statutes of limitation are considered statutes of repose, intended to afford security against stale demands. The original debt is no longer demandable, and the remedy for the enforcement of the obligation thereof is gone, after the statute has run; hence something more than a mere admission or confession of its existence is necessary to renew it. And this distinction is, as we shall see, a very important factor in the determination of the question presented in this case.

In the revision of 1866, the section above referred to was repealed, and the preceding section (23) amended so as to make it an exact transcript of the section of the New York Code upon the subject. The statute as amended, and as it has since remained, is as follows, (Gen. St. 1878, c. 66, § 24:) “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; but this section shall not alter the effect of any payment of principal or interest.”

Section 23 (St. 1858) was, pro tanto, a transcript of the New York statute, and the provision incorporated in relation to the effect of payments, (section 24,) as it stood originally, was incorporated in a separate section in the form we find it, the arrangement seemingly being an intentional departure from the New York statute as respects the subject of that section. Whitaker v. Rice, supra. The change made by the amendment of 1866, in view of the decision in Whitaker v. Rice, and the construction which had previously been given to the New York statute in that state, then well established, are very strong evidence of an intention on the part of the legislature to adopt the law of that state upon this subject as there construed.

Under the statute there must be a promise or acknowledgment or a part payment, and the acknowledgment relied on must be sufficient to imply a promise,-1 Smith, Lead Cas. (8th Ed.) pt. 2, 988; Denny v. Marett, 29 Minn. 362;S. C. 13 N. W. Rep. 148;Moore v. Bank of Columbia, 6 Pet. 92;-and in respect to part payments the same rule applies. It must appear that the debtor intended to recognize the obligation of an entire debt of which he has paid a part so as to imply a promise. Brisbin v. Farmer, 16 Minn. 216, (Gil. 187;)Young v. Perkins, 29 Minn. 174; S. C. 12 N. W. Rep, 515;Chadwick v. Cornish, 26 Minn. 28;S. C. 1 N. W. Rep. 55. “It is only reliable as evidence of a promise, or from which a promise may be implied.” Shoemaker v. Benedict, 11 N. Y. 185. It is the new promise or contract, upheld by the original consideration, which must be relied on to support an action otherwise barred by lapse of time, though the declaration in form pursues the old contract or cause of action as the ground of recovery. Winchell v. Hicks, 18 N. Y. 560.

Judge STORY, in his masterly discussion of the subject in Bell v. Morrison, 1 Pet. *371, says: “The revival of a debt supposes that it has been once extinct and gone; that there has been a period in which it has lost its legal use and validity. The act which revives it is what essentially constitutes its new being, and is inseparable from it. It stands, not by its original force, but by the new promise, which imparts validity to it. Proof of the latter is indispensable to raise the assumpsit on which the action can be maintained. It was this view of the matter that first created the doubt whether it was not necessary that a new consideration should be proved to support the promise, since the old consideration was gone. That doubt has been overcome, and it is now held that the original consideration is sufficient, if recognized, to uphold the new promise, although the statute cut it off as a support to the old. What, indeed, would seem to be decisive on this subject is that the new promise, if qualified or conditional, restrains the rights of the party to its own terms, and if he cannot recover by those terms he cannot recover at all.”

Recurring to the pivotal point in this case, if there must, then, be a new promise, express or implied, to sustain an action, can one of several joint debtors, from the mere fact of the existence of the joint liability, and having no authority in respect to each other except such as results from that relationship, by his own several act or agreement create or renew a liability as against all such debtors for a debt otherwise barred by limitation? Logically, and upon principle, there can be but one answer to this question. No such authority or agency exists, or can be implied, from the joint contract as will authorize one to act for and bind the others so as to renew or extend their liability, where the relation is merely that of joint debtors. Neither is the agent of the other to make a new contract with the creditor, or to bind the others by a new promise changing or affecting their legal rights, or giving such creditor a right of action against them which he would not otherwise have. And nothing can be added to the exhaustive and satisfactory discussion of the subject in...