Campbell v. White

Graves, J.

This case. is considered as presenting three general questions .'for decision.

First. Whether a, married - woman residing with her husband and owning a separate estate, can be held liable for, merchandise purchased by herself ;on her individual credit, and sole agreement to pay for it, in case the items belong to the class of family necessaries, and are actually used by the husband’s family and in his household.

Second. 'Whether the account which thé evidence tended to prove in-this case, was an open mutual account current within the meaning óf § 5365, Comp. Laws.

Third. The legal bearing and. effect of' the visits of Mrs. White: to Detroit imder-'the circumstances 'stated in thcrecord.

- -The first question-must'be answered diNthe affirmative, and upon, the .grounds 'stated by; -my." brother;..'Cooley, in Tillman v. Skacleton, 15 Mich., 447. In the present case aS.;ahnthat,ii±he.-jliability; of-.-fhe1' wifé-‘'W!aS 'cbhseqdéht tipM-her í ob'tainnienb- of rther gbods?1$h: hef fsole1 vcrédit" añd :.ihdh» vidúabpi*omise'to pay for •them,- and iwas )therefore :contemt poraneous with such obtainment; and' hot- 'conditional.-upon - the kind .of use to -which-the goods'should he ‘subsequently; put.. .Her fight-.to' acquire', upon-her own. '.credit, was connpíete when, the articles were' obia.meCu~-Darby v. Callaghan, 16 N. Y., 71;. Knapp v. Smith, 27 N. Y., 277; Draper v. Stouvenel, 35 N. Y., 507; and her liability to the vendors was .not contingent upon her ownership- of other separate-estate, or on the character of the goods'bought, or the nature of their immediate or- lilterior dispositionbut it existed, if at all, when the property was obtained on her exclusive credit and individual agreement. Her promise to pay for the articles was an undertaking to pay for her separate property, and one she was competent to make.— Stewart v. Jenkins, 6 Allen, 300; Labaree v. Colby, 99 Mass., 559 ; and if the goods had-been immediately lost or destroyed by the purchaser, her liability for the price would have been as perfect as though she had used them for the benefit of her pre-éxisting separate estate. Of course, the principles which apply here can bear no relation to the doctrine of those cases where goods furnished to the wife or family, or at the instance of the- wife, are considered as furnished to the husband, or at his expense.

Second. As the facts are stated in the bill of exceptions, it appears that Mrs. White made an account of about five hundred dollars between July, 1860, and July, 1861, which was increased by another series of purchases between the latter date and November 1, 1861, to about seven hundred dollars, and that between September, 1865, and May, 1866, another bill of seventy-five dollars was made; that on the 15th of August, 1860, she was credited on plaintiffs’ books with a rosette returned; on the 4th of March, 1861,,with blankets returned; on February 6, 1862, with cash returned, and in 1866 with a bonnet returned; but that no charge appeared on the plaintiffs’ books of an earlier date than this last item for a bonnet sold. The necessary inquiry here is as to the import of these entries. r Those showing the return of the three articles of merchandise, clearly implied, in the absence of evidence to the contrary, that whatever, if anything, had occurred respecting a sale of the articles named, it was considered as extinguished and blotted out, and there is no room for contending that those entries either implied or indicated a re-sale of the goods to the plaintiffs or their reception by the latter as payment on account. The entry of cash returned had no tendency to show a lending to the plaintiffs or payment on account. It implied at the utmost that the money had first passed from the hands of the plaintiffs to those of the defendant for some purpose, and then back again to the plaintiffs, and it cannot be admitted that when it went into the hands of defendant it was an item in the class of family necessaries to which the evidence referred everything on the debit side of the account. The only reasonable inference from the entry is, that the transaction to which it related did not blend with the general dealing which formed the matter of account, but was an isolated and independent one which was completely closed and canceled by the return, so as to leave the parties in the same position as though the defendant had never received the money at all. These credit items, as they are called, were not therefore such matters of account, as, when taken with the debit items, would constitute a mutual account, within the meaning of the statute. They should be taken as denoting merely that certain accommodations were extended by the plaintiffs to the defendant which might have eventuated in making the defendant permanently liable for the things returned, but which were so closed after all as to give rise to no legal eventualities whatever. See Stickney v. Eaton, £ Allen, 108.

Third. On this branch of the case there is reason to suppose that some misapprehension has existed as to the exact question presented for decision. The plaintiffs’ request to charge, which was refused, assumed that the defendant resided out of the state, and in effect maintained that the time of her presence here while her foreign residence continued, could not be counted as part of the statutory period of limitation. But the charge given in compliance with the request of defendant proceeded on the idea that the point in dispute and to he decided was, whether a residence out of the state within the meaning of the statute was established by the facts, and in reference to this. the jury were told “that if they found that the defendant, while she resided at Windsor, was regularly in the habit of frequently coming to Detroit openly and without concealment, that then she did not reside out of and remain absent from the state, within the meaning of the statute of limitations.” .

This theory of the charge, however, is not supported by the case; according to the bill of exceptions as framed, the fact of defendant’s residence in Canada was not controverted. By the statement there made, the evidence for the plaintiffs tended to prove "“‘that' on Or about-the'first day of November; 1867, Hie defendant removed'hor residence to' Windsor,‘w! Canadá, whére she' has resided ever since,” and the evidence for defendant' tended‘to' prove ‘“that after-she removed from' Detroit,-"in t867,'W'Chndda, She-Resided for' 'over- a'yecCf-in ' Windsorj and'1 waS'-frequently- in Detroit and in plaintiffs’ -‘store.” •:‘:|'Tiie’--!re&l- ’siibjfe'ct'-'in disputé'was hot,’’-therefore; it'-Woáíd's'eeni'p 4hethfer'héf -residence * waS in Mxch'igaix---'Or 'Canádá;'‘düring'.',''her'-',sojoiurn,in'the -latter, but whether; ás'súming hdr- residence-- to'hare”been-’in Canada from a date 'subséqUent'-to tbé'-'rise -of‘the 'cause-of action, her visits to Detroit during the continuance of her -foreign residence áffeót'ed' the ' running ~o'f' the Statute, and if so, how ?' The question thus presented-- - arises under the’ last branch-of $ 5369 Comp. Laws, which'"provides that- “if after ány ‘cáttsé 'of • aótíoñ- shall have'' accrued the person against- whom -it shall have accrued' shall - be- absent"from axxd reside out of the state, the time of his absence shall not be baleen as any part of the time- limited for the ’commencement of the action.” The terms of this provision at once suggest a 'meaning different from - that contended for by either party. The condition upon which the suspension of the statute depends, requires the concurrence of two facts, namely: residence out of the state and absence from it; and without the conjunction of these elements the condition will be incomplete. If the specific language of this paragraph be adhered to, the time of the debtor’s absence cannot be deducted when he resides here, nor the time of his residence elsewhere when he is not absent. If the time limited for bringing suit is not to run while the condition for suspending it is made complete by the concurrence of the facts of non-residence and absence, and the suspension is to cease and the time to run while the condition is incomplete by the non-resident debtor’s non-absence from the state, it would seem to follow that the statute will neither admit the view of plaintiffs’ counsel, that the length of the foreign residence alone must measure the deduction, or that of defendant’s counsel, that no other period of absence is to be deducted than such as may have preceded the debtor’s first public return to the state. The counsel for the plaintiffs, however, very much relied on Burroughs v. Bloomer, 5 Denio, 532, as supporting the position that residence abroad was alone sufficient to prevent the running of the time limited for bringing suit, while Dorr v. Swartwout, in the Circuit Court of the United States, N. Y. Leg., Obs., 270, was cited by defendant’s counsel, it would seem as authority for the proposition that the time will commence running on the .debtor’s first public return, and thence continue running notwithstanding any subsequent departure, and they might have cited Randall v. Wilkins, 4 Denio, 577, and Cole v. Jessup, as reported in 2 Barbour’s Sup. C. R., 309, to the same point.

In Burroughs v. Bloomer, it was held that successive absences might be accumulated and deducted, and it was likewise thought that the expressions “and reside out of the state ” and the “ time of his absence ” were identical in meaning, and consequently that the non-residence itself would be an “absence” which would continue the suspension, even though the debtor, while non-resident, should spend a portion of his time openly in the state. While this case stands approved as authority upon the point first mentioned, the view taken by it in favor of constructive absence has not only failed to receive judicial approbation, but is plainly repudiated. In Ford v. Babcoch, 2 Sandf. Superior Court R., 518, which has obtained the character of a leading case, the court (p. 531) expressly withhold their assent from this novel doctrine, and the reasoning in several later cases in the same state does not accord with it. — Berrien v. Wright, 26 Barb., 208; Cole v. Jessup, 6 Selden (10 N. Y.), 96.

In Maine and Massachusetts, where the statute is precisely like our own in this regard, a broad distinction is recognized between “ residing out of the state,” and being “ absent from the state.” In Langdon v. Doud, 6 Allen, 423, 425, the court say “absence from the state” is clearly not sufficient to suspend the operation of the statute. The provision is explicit that the time of a debtor’s absence shall be deducted from the time limited for the commencement of the action, only in case “he is absent from and resides out of the state.” See also Drew v. Drew, 37 Me., 389; Ruckmaboye v. Mottichund, 32 E. L. & E., 85, likewise bears on this point. In this case, which *was one before the privy council, on appeal from the supreme court of Bombay, it was held that the words “beyond seas” in the English statute were synonymous with the words “ out of England,” and not to be interpreted literally, and that there was no such thing as a constructive inhabitancy within the jurisdiction. It is only necessary to add in disposing of the point now being considered, that it will appear by reference to Burroughs v. Bloomer, that the same process there employed to show that notwithstanding the debtor’s public appearance in the state for a considerable period, he should by construction of law be considered as constantly absent in consequence of his foreign residence, may be equally employed to show that his presence here should, by construction, make him a resident notwithstanding the existence of facts proving him to be a non-resident. For assuming the ground which is insisted on in Burroughs v. Bloomer to warrant the conclusion there stated, that the expressions “reside out of the state” and “absent from the state” are of equivalent meaning, the one consequence may as readily follow as the other.

As therefore the ground of the reasoning in this case, relative to the operation of the statute in the particular in question, appears to lead with equal, directness and force to repugnant results, it cannot be sound.

The position of defendant’s counsel, adopted chiefly on the strength of Dorr v. Swartwout, but also maintained by Randall v. Wilkins and Cole v. Jessup in the supreme court, that on the first return to the state by the nonresident debtor, the time limited for commencing suit will run without further suspension being caused by subsequent departures, is certainly untenable. Our statute was copied from that of Massachusetts at a time when their law had reached the form, in which we copied it, by successive modifications, and it is therefore not unreasonable to cast an eye to the previous changes there made in order to discern clearly the direction taken by legislation and the- end apparently contemplated. An examination of the course of Massachusetts on this subject will show that the drift has been in favor of extending rather than contracting the exception to the English statute, and that concurrently with that tendency there has been another to graduate the exception by the obstacles to service on the debtor rather than by the place of his residence. It is also observable that in New York and several other states the statute has been altered from time to time in the same spirit, while the bent of judicial opinion in the best considered cases in those states in which the law has been thus moulded has manifestly coincided with this general tendency in legislation.

This circumstance is not wholly unimportant when the construction urged on one side would greatly restrict the exception, and that suggested on the other would make the absence of obstacles to the personal service of process a fact of little or no consequence. Recurring to the decision in Dorr v. Swartwout, it is said to have been overruled in the same court (Ford v. Babcock, pp. 530, 531; Berrien v. Wright, 26 Barb., 217). But whether it has been or not, it is shown to have been founded on an erroneous view of the statute and to be without authority. — Burroughs v. Bloomer; Ford v. Babcock; Cole v. Jessup, in the court of appeals (6 Selden), and Gilman v. Cutts, 3 Foster (23 N. H.), 376. The case of Randall v. Wilkins, in so far as it agrees with Dorr v. Swartwout, was disregarded in that branch of the case of Burroughs v. Bloomer, which has subsequently been approved, and followed, and was expressly overruled in Ford v. Babcock, Wright v. Berrien, and Cole v. Jessup, in the court of appeals, and the decision in Cole v. Jessup in the supreme court, reported in the 2d Barbour, and agreeing with Dorr v. Swartwout, was reversed in the court of appeals, as reported in 6 Selden.

The able decisions opposed to Dorr v. Swartwout have completely overthrown the rule laid down in that case, and in so doing have materially aided in establishing the contrary one. And it may now be considered as settled by the clear weight of authority, that successive absences may be accumulated and deducted from the time limited for bringing suit, and reciprocally that successive visits to the state may be reckoned as periods in which the time so limited will continue running. But a further question arises as to whether these visits to have such effect must not be distinguished by peculiar conditions. As, by the terms of the enactment it is the time of the debtor’s “absence” which is to be deducted, a literal reading would imply that any non-absence, however fugitive and temporary, or in other words, the mere personal presence of the debtor for a moment any where within the territorial limits of the state, would cause the time to run against the creditor for the period of such visit. But this view, it would seem, has never been accepted. The courts appear to have held without exception that a literal construction would be so unreasonable as to' preclude the belief that the legislature ever intended it. They have therefore invariably decided that in order to cause the time limited to commence running, the return of the debtor must be such as to allow tne creditor an opportunity to subject him to the jurisdiction of the state courts. A brief reference to a few of the principal cases bearing on this point will suffice to show the course of decision on the subject. In White v. Bailey, 3 Mass., 271, the court say that the statute “ in providing that the limitation should commence on the debtor’s return into the state, must intend Such a return as would enable his creditor, using reasonable diligence, to arrest his body as security for the debt.” In Fowler v. Hunt, 10 J. R., 465, the court observed as follows: “The word ‘return’ applies as well to persons coming from abroad, as to citizens of this state going abroad and then returning. The coming from abroad must not be clandestine and with an intent to defraud the creditor by setting the statute in operation and then departing. It must be so public and under such circumstances as to give the creditor an opportunity, by the 'use of ordinary diligence and due means, of arresting the debtor.” The supreme court of New Hampshire, in Shapley v. Felt, 3 N. H., 121, recognized the same view by saying it was “not doubted that a return of a debtor from which the statute of limitations begins to run must be such a return as will enable his creditor, using reasonable diligence, to arrest his body.” The opinion of the court in Byrne v. Crowninshield, 1 Pick., 263, and in Little v. Blunt, 16 Pick., 359, is equally explicit. In the former, the court say that “by a return within the government must be meant such a return as will give a party reasonable opportunity to commence an action,” and in the latter “that the return to the state to set the statute in motion must be such that the creditor must know, or by reasonable diligence have the means of knowing that the debtor is within the commonwealth.” All the later cases in Massachusetts and New Hampshire which allude to the point, appear to sanction the same doctrine. The case of Randall v. Wilkins, 4 Denio, 577, which as to this question has not been disparaged, sustains the view taken in Fowler v. Hunt, and the latter case seems also to have met the approval of the superior court in Ford v. Babcock, and of the court of appeals in Cole v. Jessup.

From the foregoing and many other cases, it may be taken as having been well settled that the object of the legislature in qualifying the operation of the statute by the fact of the debtor’s absence or non-absence from the state was to allow or prevent the running of the time limited for bringing suit, when the creditor should, or should not, in consequence of the circumstances, have a fair opportunity to subject his debtor to the jurisdiction of the proper court of the state. And considering the tenor of the authorities and the object of the. clause in question, the rule which alone appears admissible, is that a temporary non-absence, or, in other words, a return in order to cause the time limited for bringing suit to commence and keep running during his stay, must be shown by the debtor either to have been actually known to the creditor, and to have been so long continued and under such circumstances after such knowledge, as to have enabled the creditor by reasonable diligence to have subjected him to the jurisdiction of the proper state court; or else to have been so notorious and protracted and so identified with some locality, as to show that the creditor might by reasonable diligence have learned of the debtor’s return or non-absence; and by the like diligence after such fact could have been learned, might have, subjected him to the jurisdiction as before stated.

Having now disposed of all the questions, which as this record is constituted are regularly raised, this opinion would naturally close here. But as the charge of the circuit judge, pursuant to the request of defendant’s counsel, appears to have assumed that the controversy before the jury made it necessary to decide whether, upon the evidence relating to defendant’s residence, she was or was not a resident of Michigan within the meaning of the statute, and since that question may be seriously agitated on another trial, it is thought expedient to notice it at this time.

In order to ascertain the correct meaning of the phrase “and reside out of the., state,” it is essential to keep in view the. nature and object of the general provisions, and the end aimed at by the qualification. The act, of which this expression is part of a qualifying section, is designed to close the courts against a creditor by prescribing a time beyond which he shall not commence suit against his debtor if the latter see fit to insist on the lapse of time as a bar; and the clause, of which the passage in question with that about absence from the state is the pith, forms an exception to the general terms of the limitation.

Its obvious purpose is to save from'the operation of the general provisions those periods of time when the creditor cannot at his election have the aid of our courts for the commencement of suit in consequence of the debtor’s belonging within another jurisdiction, and his not being so within our own as to enable the creditor by reasonable diligence to reach him. And considering the matter in this light, it is reasonable to infer that the legislature meant that this fact of residence, as one by which the running or suspension of the time is to be determined, should be more emphatic and distinct than it would, be if distinguished only as a place of mere temporary sojourn for, some transient purpose.

That the term “reside” is used in that sense sometimes imputed to it for the purpose of drawing a distinction between “residence” and “domicil,” cannot be admitted. For -by the meaning thus ascribed to it, a person may be a resident of more than one country at the- same time. As the phrase is employed here, it seems by necessity to imply something single and exclusive, and the reason is strong against reading it in a sense permitting a residence in Michigan and Canada at the same time. To give it that interpretation would make the condition of non-residence either absurd or nugatory. To satisfy the meaning of the legislature, the phrase must be understood as importing something so distinct, definite and fixed as to constitute the party’s home, the place of permanent abode, which, whenever left temporarily or on business, the party intends to return to, and on returning to is at home.

This result accords with the view entertained elsewhere of similar questions. In Langdon v. Doud, before cited, the supreme court of Massachusetts had occasion to examine the corresponding provision in their statute, and it was there decided that the language used “did not signify a temporary sojourn or occasional abode,” but was synonymous with habitancy or domicil, and contemplated the place where the debtor dwelt- or had his home; and the court were of opinion that such construction accorded with “the weight of authority in those states where an exception to the statute of limitations existed similar in its phraseology to ” that in Massachusetts and this state “ on the subject.”

As very pertinent in this connection, a passage in the opinion of Chief Justice Bigelow in that case is worthy of being quoted at length. “ It may be added,” he said, “ that this construction of the statute seems to be the only one which will afford a fixed, permanent and certain rule by which to ascertain whether a particular case is included within or excluded from the operation of the exception to the statute. If residence is not held to signify domicil, it can have as applied to the subject matter,- no definite and ascertained meaning; but it would be necessary to vary its interpretation in each particular case, according to the circumstances proved concerning the length of the absence of the debtor from the state, and the objects for which he went away. There would be no standard by which to distinguish whether he could claim the benefit of the statute bar, or was excluded from the operation of the exception.” The same idea was enunciated in somewhat different terms in Chaine v. Wilson, 1 Bos., 673. The point arose there under the New York attachment law, which authorized an attachment when the debtor resided out of the state. The court, by Bosworth, chief justice, said : “ Ordinarily one’s residence and clomicil (if they - do not always mean the same thing) are in fact the same, and where they so concur they are that place which we all mean when we speak of one’s home. And it may safely be asserted that where one has a home, as that term is ordinarily-used and understood among men, and,;ihe. habitually resorts to that place for comfort, rest and relaxation from the cares of business, and restoration to health, and there abides in the intervals when business does not call, — that is his residence, both in the common and legal méaning of the term. And to one who has such a home and habitually uses it as such, a place of business elsewhere is not his residence, within any proper definition of the term.” Some further observations are added as to proof of residence and change of residence, which are too important to be omitted. They are as follows: “When the questiou, ‘Where is his residence?’ arises, some of the proofs, or the indicia, by which the place is to be determined vary with the circumstances of the party. One has a family, another has none; one lives in a state of alienation and separation from his family, another lives with them; one owns or hires a dwelling-house, another has lodgings at an inn; and another may have a much more uncertain shelter. None of these circumstances are necessarily alone conclusive; they are not decisive tests; they are only aids to an answer to the question to be considered in connection with all other pertinent facts which may appear. So when the fact of residence in a place is ascertained or conceded, it is to be deemed to continue until there is proof of a change of location, with intent to make such location a new home in the sense above already described, not merely for a temporary purpose, but with a fixed purpose to remain, and without a present intention to return when some temporary purpose is accomplished; and again, it is not enough that one intends to change his residence. The* intent and the fact of such change must concur. Nor is it enough that he intends to change his residence, and sincerely believes that what he has done amounts in law' to a change of his residence; his opinion will not affect the question if the actual change have not taken place.” See also; Hinds v. Hinds, 1 Clarke (Iowa), 36; Whicker v. Hume, 7 H. L., 124, 147, 159, 164.

The opinion entertained of the purpose and meaning of this statute must sufficiently appear without further comment, and as the rulings in the court below were at variance with the views which have been expressed, the judgment must be reversed with'the costs of this court and a new trial ordered.

Campbell, Ch. J. and Cooley, J. concurred.

Christiancy, J. did not sit in this case.