Young v. Perkins
| Decision Date | 01 June 1882 |
| Citation | 12 N.W. 515,29 Minn. 173 |
| Parties | Winthrop Young, Administrator, v. Ann Perkins, Administratrix |
| Court | Minnesota Supreme Court |
Defendant's intestate died October 20, 1880, and defendant was appointed administratrix of her estate on December 20, 1880. On February 3, 1881, plaintiff filed as a claim against the estate a note made by defendant's intestate, payable to the order of plaintiff's intestate dated June 18, 1873, on which were several indorsements of payments, the last being dated January 5, 1875. The probate court allowed the claim, and defendant appealed to the district court of Hennepin county. In the district court the action was tried by Young, J., without a jury, on stipulated facts, and the claim was disallowed. A new trial was refused and the plaintiff appealed. All that appears in regard to the note, from the facts stipulated, in addition to its making and delivery, is "that the indorsements on said return (from probate court) which appear are true copies of indorsements which now appear upon the back of the said note." No evidence was introduced by either party as to the time when the indorsements were made.
Order affirmed.
J Guilford, for appellant.
Cross, Hicks & Carleton, for respondent.
Defendant 's intestate was maker, and plaintiff's intestate payee, of a promissory note bearing the following indorsement: "Received, January 5, 1875, one hundred dollars on within note." From this indorsement alone, without any extrinsic fact, can it properly be inferred that such a payment was made upon the note as will preserve a right of action upon it for six years from January 5, 1875?
In Brisbin v. Farmer, 16 Minn. 215, it was remarked (p. 224:) "There is no doubt that a part-payment, without words or acts to indicate its character, would not be construed as carrying with it an acknowledgment that more was due and would be paid; i.e., it would not be evidence from which a jury would be warranted in inferring a new promise." This rule is followed and applied in Chadwick v. Cornish, 26 Minn. 28, 1 N.W. 55. A careful reading of the opinion of the court in Brisbin v. Farmer will make it evident that the words "part-payment" are used as the equivalent of the words "payment of a part," and that the meaning of the court is that the payment of a part of a larger subsisting debt, as a part thereof, if unaccompanied by facts or circumstances of a contrary or inconsistent tendency, may be evidence from which a new promise can properly be inferred, or, as it may be otherwise stated, evidence of a fact which interrupts the running of the statute of limitations. See Downer v. Read, 17 Minn. 493. Is the indorsement in this case evidence of such part-payment? Independent of statute, the generally-received rule was that an indorsement upon a note of part-payment was not evidence of such payment, unless it appeared to have been made with the privity of the debtor, or unless it appeared to have been made at a time when its operation would be against the interest of the holder. In the latter case it was admitted as any other declaration against interest. Angell on Limitations, § 241; citing Roseboom v. Billington, 17 John. 182, and other cases. See, also, Turrell v. Morgan, 7 Minn. 290, (368.)
Our statute, in Gen. St. 1878, c. 73, § 90, enacts that "an indorsement of money received on any promissory note, which appears to have been made when it was against the interest of the holder to make it, is prima facie evidence of the facts therein contained." We imagine that this provision of statute was adopted (in 1866) in view of the holding in Turrell v. Morgan, (in 1862,) "that indorsements on the back of written instruments are independent writings in the nature of receipts or written declarations, and that they can be read in evidence only after proof made that they are signed by the party sought to be charged, or have received his assent in some binding form." The legislature would seem to have been of opinion that this was not or ought not to be the rule, but that, in accordance with the rule which we have before stated, such an indorsement was, or ought...
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