Rowe v. Thompson

Brady, J.

The plaintiff held notes of the defendant, dated respectively, March 8th, 1852, April 1st, 1852, and May 5th, 1852, and each payable six months after date. About the first of February, 1856, the defendant requested Mr. Hodges to “ get his creditors to do something so that they could not molest him for a couple of years, to enable him to go into business.” Mr. Hodges, acting upon this request, called upon the plaintiff to see if “ he would not molest the defendant for two years, so that he could go into business: the plaintiff agreed to it.” Mr. Hodges also said on the trial, “ I merely asked the plaintiff if he would extend the time, and he granted itbut the witness was not certain whether any paper passed. A paper was, however, presented by him, which the plaintiff signed, and the substance of which was, “We, the creditors of Elmor Thompson, agree not to sue or molest him for his indebtedness, or the debts owing to us by him, for two years from the 1st of February.” The contents were not stated exactly, because the paper was not produced. It was, however, in the possession of the defendant. The plaintiff states in addition to the substance of the paper already given, “ and at the end of that time the debt w'as to remain unimpaired. It was known as a letter of license, as near as I can recollect.” This statement was not contradicted by the defendant, although he did not embrace it in giving his version of the contents of the paper. This action was commenced within six years after the first note became due, allowing to the plaintiff the two years during which he agreed not to molest the defendants, or rather deducting it from the period which had expired from the time that note became due, and the date of the commencement of the action. It will be perceived on these facts, that this case does not involve the question of a new promise, which is now required to be in writing, but whether the defendant, having induced the plaintiff to suspend any proceeding against him for two years, is not estopped from availing himself of that circumstance. He admits that it was his design to get from his creditors, generally, a similar agreement, but states that not having succeeded, the paper signed by the plaintiff and others was of no avail to him. He does not state, however, either that he gave notice of that result to the plaintiff or offered to return him the paper signed. He did nothing, in fact, to advise the plaintiff that he was under no obligation to delay proceeding, but permitted him to remain under the impression that he was bound not to molest him. The defendant appears, therefore, with a defence technical and wanting in good faith. It will not serve him. The agreement which he made with the plaintiff is an estoppel in pais as to the two years. The plaintiff acted upon it, and he would be injured by allowing it to be disregarded. (See Cremin a. Byrnes, 4 E. D. Smith, 756; Dezell a. Odell, 3 Hill, 215.)

The paper signed was equivalent to an agreement not to plead the two years as a part of the Statute of Limitations. Such an agreement made during the running of the statute would be binding. (Utica Ins. Co. a. Bloodgood, 4 Wend., 652; Gaylord a. Van Loan, 15 Ib., 308.)

The defendant virtually asked the plaintiff to suspend any proceeding against him for two years, and having accomplished his object endeavors to avail himself of it to the prejudice of the plaintiff. Hot only in conscience, but in law, the defendant cannot be allowed to set up his own breach of faith or fraud in order to derive an advantage for himself to the injury of the person deceived by him. (Per Nelson, J., in Gaylord a. Van Loan, supra.) For these reasons I think the presiding judge was right in directing the jury to find for the plaintiff.

The case, however, admits of another view; the paper which the defendant caused to be presented to the plaintiff for his signature, may be regarded as a promise to pay, signed by the defendant. The debt was to remain unimpaired. It was a promise to pay, at the end of the two years, the debt due to each one of the persons who signed it. If not a promise to pay, in absolute terms, it was in legal effect. . Under the Code (§ 110), no promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the Statute of Limitations, unless the same be contained in some writing signed by the party to be charged thereby. Under the statute (29 Car. II, 3, § 17), which was substantially the same as the section of the Code referred to, it was held to be a sufficient signing if the name of the party to be charged appeared in the agreement. (Saunderson a. Jackson, 2 Bos. & Pull., 237; Knight a. Crockford, 1 Esp., 190; 2 Pars, on Cont., 287, 289, and note; Slotes a. Moore, 1 Cox, 219.)

The name of Elmor Thompson was sufficiently signed to the agreement, therefore, to conform to the section of the Code referred to. Assuming this to be the case, then, if the writing contains a promise, the operation of the statute is avoided. I think, as before stated, that it does contain a promise, and that the defendant should be held upon this view, as well as the one hereinbefore expressed.

The exceptions taken to the question allowed to be answered by the witness Barnard, were not well taken. The defendant’s counsel objected to proof of the contents of the paper signed by the plaintiff, as it was not signed by the defendant. The answer to the objection is, that the proof had already been given. The question, “ what did that paper refer to ?” was pertinent, because if the agreement did not relate to the notes in suit, the statute clearly applied to them. The paper itself did not designate the debts deferred. I can discover nothing in this case which would warrant a reversal of the judgment.

' It should be affirmed.

Hilton, J.

The debt sued for was barred by the Statute of Limitations, unless the writing, denominated a letter of license, which the defendant procured to be drawn up and presented to the plaintiff for signature, and which after being signed was returned to and retained by the defendant, must be regarded as an acknowledgment by him of an indebtedness then existing in the plaintiff’s favor.

The Statute (Gode, § 110) allows that such an acknowledgment of indebtedness must be contained in a writing signed by the party to be charged therewith. It does not require the writing to be subscribed; therefore it is sufficient if it be evident, from any part of the instrument of acknowledgment, that the debtor named in it has given to it his assent; and as the legal definition of the word “ signed” is the act whereby a person gives or declares assent by name, sign, or mark,” it follows that it is enough if it appears in the body, or upon the margin, or elsewhere, of the instrument, that such assent, has been given. If the attestation appears anywhere upon the face of the writing it is sufficient, and the party thus attesting is bound as effectually as if he had subscribed his name at the foot. (See Davis a. Shields, 26 Wend., 341, and cases cited.)

The opinion of Senator Verplanck, in this case, shows clearly the legal distinction between the words “signed” and “subscribed,” when used in a statute: the former signifying what I have stated; and the latter meaning, subscribing the name at the foot of a written instrument.

The writing in question, tested by these views, was a sufficient acknowledgment of indebtedness by the defendant, within the terms of the statute, and operated as an extension of the time within which the plaintiff might bring his action.

Judgment affirmed.