Warren v. Walker

The opinion of the Court was drawn up by Whitman C. J.

This is an action of assumpsit upon an account for services done and performed. The defendant, in the Court below, pleaded the general issue, and filed a brief statement, setting up the statute of limitations in defence. The plaintiff on the trial there produced a memorandum, subjoined to a bill of particulars of his account, in these words, “ Dec. 7, 1841, I hereby waive all defence, which I might otherwise make to the above bill by law, under and by virtue of any statute of limitations ; ” which was signed by the defendant ; and contended that it amounted to a written acknowledgment of the indebtedness of the defendant; or to an express promise by him to pay the debt, thereby taking the case out of the statute of limitations, in conformity to the provision in the statute of 1841, c. 146, <§> 9, and the presiding Judge so ruled. At the conclusion of the trial the defendant filed exceptions to this, and several other rulings of the Court.

Whatever may be the impression, as to the honor and uprightness of the defendant, in setting up the statute of limitations, after having signed such a memorandum, still it will be incumbent upon us to be guided by the rules of law in our decision in reference to it. It is the right of every citizen to have the law administered according to the just import of its terms. The law of the land must necessarily be comprised of a body of general rules. In their adoption it cannot be foreseen how they will operate in every possible case that may arise ; and though in general they will be sure to be promotive of equal and exact justice, yet cases may occur under them, in which undue advantage may, and by those not under the control of a strict moral sense, will be taken. To avoid such results Courts are sometimes strongly tempted to put a construction upon enactments, of which the terms would other *458 wise seem hardly to be susceptible. Whether the Judge in the Court below, in view of the unreasonableness of setting up, under the circumstances, of this ground of defence, was under any such amiable influence, for such it may be termed, it is unimportant for us to inquire; but we can entertain no doubt, that his construction of the memorandum, introduced by the plaintiff, was not in strictness correct. To test its correctness we may inquire whether the memorandum, according to its terms, could have stood in the way of any defence, other than that of the statute of limitations. If it contains an acknowledgment of indebtedness, or a promise to pay the debt, it surely would do so. But the defence, which the defendant agreed to waive, was only that, which he had, “ under and by virtue of any statute of limitations.” He did not agree to waive the defence of payment, or of the non-performance of the services as charged, or indeed of any other defence, which he might have had to the original cause of action. There could not, then, have been implied, in the memorandum, any absolute, or even conditional acknowledgment of indebtedness, and much less any absolute or conditional promise to pay the debt. Upon this ground, therefore, the memorandum could have no effect to obviate the defence under the statute of limitations.

But there was another ground upon which the memorandum may be considered as effectual for that purpose. When the defendant agreed to waive any defence, which he might have had, “ under and by virtue of any statute of limitation,” it must be understood to be an agreement never to set up any such defence. Now a covenant not to sue an obligor in a bond is tantamount to a release of the obligation ; and an agreement in writing never to sue on a parol contract, has a similar effect. Foster v. Purdy, 5 Metc. 442 . By a parity of reasoning the memorandum in this case should preclude the defendant from setting up this defence. This view of the subject is very much strengthened by the case of Webber v. Williams College, 23 Pick. 302 . In that case Webber held a note, purporting to be signed by a person acting as agent *459 for the defendants. When it had stood nearly six years the plaintiff demanded payment. The treasurer of the defendants wrote to the plaintiff, saying if he would forbear suing then he should have the same rights lie then had for one year more ; and this the plaintiff complied with. The Court considered this agreement to be a waiver of the defence, afterwards attempted to be set up under the statute, as it was entered into before the limitation was complete. In the case at bar the jury found that the limitation of six years had not elapsed when the memorandum was signed. The two eases, therefore, are very nearly, if not quite parallel; and the former is strongly in point for the plaintiff; and we are inclined to acquiesce in the reasons for such a decision.

The question will now be, whether, as the Judge assigned a wrong reason for suffering the memorandum to operate against the statute bar, it is competent for us to overrule the exception under consideration or not. It has been considered, that, if a Judge decides right, though he may give erronéous reasons for so doing, yet that no ground is thereby afforded for sustaining a writ of error, and we have repeatedly decided, in such case, that the excepting party was not, in the language of the statute authorizing the filing of summary exceptions, aggreived; and when,, in such case exceptions have been taken we have overruled them; and we do not perceive that such a rule might not well be applied in this case.

Exception was taken to the testimony of William Goode-now. It became necessary, it would seem, to prove that the memorandum, signed by the defendant, was not executed without a valuable consideration therefor. Parol evidence, for such purpose, was admissible. It neither varied, explained or contradicted the terms of the agreement; but showed merely that it was obligatory, like proof that the instrument was duly executed. To prove the consideration it became necessary to show the circumstances, which occasioned the making of it. To that extent his testimony was clearly unobjectionable. And it is not perceived, that, in the residue of it, there was any thing tending to vary or contradict the import of the mem *460 orandum; and, therefore, may be deemed immaterial; and, the suffering it to be introduced, a mere misspence of time, which could furnish no ground for sustaining a bill of exceptions. To send causes back to incur the delay and expense of a new trial, when, though there may have been some irregularities of proceeding, there is no reason to apprehend, that any injustice has resulted therefrom, would be alike detrimental to the interest of the public, and to that of the parties concerned.

There is, however, another exception taken, which may seem to come within this category ; yet, on the whole, we are unable to come to the conclusion that it should be so considered. It was to the refusal of the Judge to require the erasure or exclusion of a note, placed upon the plaintiff’s bill of particulars, by Henry C. Babb, and over his signature; which was, that the defendant would pay it. This it was the right of the defendant to have had excluded; for Babb himself testifies, that he had no authority to bind the defendant by any writing whatever. Upon the introduction of such testimony, the note or memorandum may not have had the slightest influence upon the decision by the jury. We are unable to perceive, that, without it, the other evidence would not have been abundantly sufficient to charge the defendant; so much so, that the note, in the view of sensible men, might be deemed wholly unimportant. But this was matter of fact, and within the province of the jury; and the refusal of the Judge to reject the note may have given it importance in their minds; and as we have no means of ascertaining that it did not, we must consider the exception for this cause as well taken.

The other exceptions taken at the trial were not insisted upon at the argument; and it does not occur to us that they were of any validity.

Exceptions sustained„