Summary
Appeal from Baltimore County Court. Assumpsit brought on the 17th of July 1809, by the plaintiff, (now appellee,) as surviving partner oí S. & J- Smith, against the defendant, (the appellant.) The declaration contained counts for money had and received — for money laid out and expended, and on an insimul eomputassent. All these promises and accountings are stated to have been to ami with S. & J. Smith, in the life-time of the said J. defendant pleaded non assumpsit, non assumpsit infra ires annos, and actio non accrevit infra tres annos, u-enerai replication to each plea and issue.
1. At the trial the plaintiff gave in evidence, that he, together with John Smith, deceased, was the owner of two American ships called the Sidney and the Pomona, which in the year 1794 were detained m je ranee by the French government several months; that for this detention, the French government, on the application of the defendant, made in the name and on the behalf of the plaintiff and bis said partner, allowed to them the sum of 39,330 iivres current money, of France, and ordered it to be included in a general balance of 156,105 livres 16 sous and 9 deniers, the residue being due to the defendant on other accounts; that for this general balance the said government caused to be issued and delivered to the defendant a transferable cer-fificate of debt in his own name, which he received and sold at a discount ofoO p c. and converted the proceeds to bis own use. The defendant then read in evidence a letter from the plaintiff to Albert Gallatin, Secretary of the Trea-Bury of the United States, dated Baltimore, June the 20th 1804: “In a letter I received from you some time past, you inclosed a note of claims substantiated by Cap. Barney in the French Bureau, and submitted to the American commissioners — the first item of which, to wit, Is. 156,105 16 9,you say is claimed in my name, and in the name other shippers of flour under contiact with Fauchel. I owe it to myselt to state, that L have no claim whatever against the French nation on that account — -that I have been fully paid for the contract alluded to — and further, that I never have authorised any person to claim forme. If recovered, [hereby disclaim every pretension thereto.” This letter had been furnished to the defendant by the plaintiff. The plaintiff thereupon, in order to ex plain the letter, by shewing what was the tenor of the note therein referred to, produced the following note or memo-rándum in his possession, and proved to be m the writing of Albert Gallatin, and offered to read it to the jury: “Extract from the list of American claims against the French government, supposed to be proved by the con - ° ft r j ventmn.
2d year, Fructidor, No. 40, Joshua Barney — Flour delivered at Bordeaux,
Decree of the 29th Gennenal 16 year,
5 year, Floreal 115. Joshua Barney for
Benlalou, balance of supplies at Cape Francois, 695,550 16
Do. do. do. balance of a bill from St.
Domingo, 15,392
6 year, Germenal. The BungtaU, Joshua
Barney,-freight of a -ship, . 31,560
Ls. 898,608 6 9.”
But the defendant objected to the reading of this note for the purpose for which it was ottered. This objection the Court, £Nicholson, Ch. J.] overruled, and permitted the note to be read. The defendant excepted.
2. The plaintiff then offered in evidence an award and settlement, made by the proper officers of the French government, whereby was awarded to the defendant, as agent of the plaintiff' and J. Smith, for demurrage due by the French Republic to'them on the ship Pomona, the sum of 21,850 livres, and the sum of 16,800 livres for demurrage on the ship Sidneij. He also proved that Paul Bentalou/ ■ as agent of the defendant, on the 9th of April 1803, sold the said two claims against the French government io Ro~ bert Fulton, at a discount of 50 per cent, and received the amount of the purchase. He further read in evidence a letter from himself to the defendant, and the defendant’s answer to the same, the first dated Washington the 19th of February 1805, viz. “On examining a list furnished by the commissioners at Paris to the department of state, l find that an account in your favour, originating in the year 2 of the French Republic, had passed the board, and was then before the minister of France for his decision, before which was known it was deemed improper to carryout the amount. On Further inquiry I am informed that one item of that account is for arbitrage for detention of ships which brought the flour, N,930 bbls. alluded to in a previous item, at 89,430 livres. The account is dated Paris an. 10, and signed by you. T presume the bills will soon begin to arrive from France for such claims; I will therefore be obliged by your forwarding to me a statement of the proportion due to the Pomona and Sidney, which ships have been employed in carrying that flour, for their detention, so that 1 may know the precise amount due to S. & J. Smith. I observe that a'n interest of 6 per cent will be paid thereon from the 8th Fructklor, an. 4. Your answer will greatly oblige yours,” &c. The answer, dated Baltimore, the 21st of February 1805, is as follows, viz. “You wrote on the 29th of November 1803, on the same subject as your letter of 19th inst. In my answer to your first I gave you every information I had, which answer you sent forward to your friends at Paris, of course must have received a further statement from them. In answer to your last I have to inform you, that I have never received any information from my friends la Paris, that any claim of mine bail passed (he American board, but on the contrary, that my claims had been rejected by them, and I suppose from the information of some zealous partisans in this country to the executive, who said my claim had been paid, and was unfounded, &c. If any claim of minchas been allowed as due in the year two, no doubt it has been sold previous to the treaty of 1803, as I gave such orders, and which I mentioned to you in mine, in answer to your letter of the 29th November 1803. But, Sir, L had no claim for 89,430, it was for 156,105 16 9, which sum was mentioned to the executive by the commissioners, as will fully appear by your letter to the secretary of the treasury, dated the 20th January 1804, (a copy of which I have, and to which I now refer,) that letter also explains what claims you can have on the above sum, if ever received by me. Whenever l receive a full statement from my Iriend in Paris, I shall not hesitate to communicate it to any person concerned.” The defendant thereupon proved, that the French liquidation in the month of January 1806, upon a revision of the said claims confirmed the same, and that they could not be paid until they had been confirmed by the French liquidators. And he further proved, that the said John Smith died in the month of June 1805. The plaintiff then offered evidence to prove, that when he wrote the before mentioned letter to Albert Gallatin, he was wholly ignorant that any claim for the demurrage aforesaid, or any part thereof, was included in the said sum of 156,105 iivres 16 sous and 9 deniers, 'mentioned in the aforesaid note. The plaintiff* also, to prove that within three years next before the time of bringing this action the defendant made a new promise to pay the money so by him received to the use of the plaintiff, gave in evidence by a competent witness, that in the month of June 1809, there was a suit depending between the defendant, and one John Hollins, in the court of chancery of this state, in which Hollins claimed from the defendant, among other things a certain sum for the demurrage of the ship Adeline and brig Moggy, which had been allowed by the French government, at the same time and in the same manner with the allowance for demurrage on the Pomona and Sidney, and was alleged by Hollins, to have been received by the defendant at the same time, and in the same manner, with demurrage' on the Sidney and Pomona; that in the said suit in chancery the plaintiff was examined as a witness for Hollins, under a commission from the court of chancery, to prove the receipt by the defendant of the said demurrage on the Adeline. and Moggy. That the defendant being present at that examination in the month of June 1809, the plaintiff' said to him, I suppose you have concluded that I have given up my claim against you, meaning as the witness then and ever since believed, the claim of the plaintiff and John Smith for the aforesaid demurrage on the Sidney and Pomona. To which question the defendant, without in any manner denying the debt, or refusing to pay it, replied No. I suppose you are waiting the result of the suit between Mr. Hollins and me, meaning, as the witness understood and believes, the claim ot Hollins for the demurrage of the Moggy and Adeline aforesaid; and also referring, as the witness understood and believes, to the question depending between the defendant and Hollins, whether Hol-lins should recover from the defendant the full sum allowed as aforesaid for demurrage, or the sum only which the defendant had received from the sale. Whereupon the plaintiff then said to the defendant, “If you would meet me, there could be no difficulty in settling .on amicable terms.” To which the defendant replied, “No, I have had enough of arbitrations., and now I want equity.” And also for the purpose last aforesaid, the plaintiff produced and read in evidence, by the consent of the defendant, the following letters to him from the plaintiff, concerning the said demur-rage for the Sidney and Pomona, dated the 25th of January 1809. “In March I mean to make a final settlement of the affairs of Sami, John Smith. I will thank you for your account of demurrage of their ships due by the government' of France, and which you mentioned to me in the court house had been settled, and must be paid for. I am informed of the amount paid to your order under the Louisiana- cession, but I have no account of the charges yob may have.paid thereon, nor of the commissions you are entitled to for your compensation.” And also read in evidence, for the same purpose, the following letter from the defendant to the plaintiff, in answer to the foregoing one, dated the 27"th of January 1809:- “I have received your letter of the 25th instant. In answer refer you to the letter of the 20th June 1804, to Mr. Gallatin, Sec’ry. of the Trea- , sury, for any claim you have against me under the Louisiana treaty of cession.” And also, for the same purpose gave in evidence, that in the month of March or April 1807", during a trial between the defendant and the said Hollins in Baltimore County Court, in which Hollins claimed from the defendant, by way of set-off, the full amount of the sum allowed by the French government for demur-rage on the Adeline and Moggy as aforesaid, the defendant did acknowledge and admit that he had received the aforesaid liquidated certificate for the sum allowed as afore- ' said for demurrage, including the allowance as aforesaid for the said Sidney and Pomona, and . had sold the said certificate at a discount of fifty per cent, as above set forth, and had received the purchase money, and that the parties respectively entitled to the said demurrage had a right to ■receive from him their respective proportions of what he had actually received, but alleged that it was hard for Hol-lins to exact from him the defendant the full nominal amount of the said certificate. The defendant then moved the court to direct the jury, that upon the whole of the evidence, if they believed the same, the plaintiff was not entitled to recover. Which direction the court refused to give. The defendant excepted; and the verdict and judgment being against him; he appealed to this court»
The cause was argued before Chase, Ch. J. and Johnson, and Martin,,J.
This suit is brought for monej alleged to have been received by the defendant, of the French government, for the use of the plaintiíf and John Smith, in the year 1803. It is stated in the record, that it was proved John ¡Smith died in June 1805. The plaintiff, as the surviving partner, to avoid the plea of limitations, relied on an acknowledgment made by the defendant to him in the month of June 1809; and on another acknowledgment made by him to the plaintiff m the month of March or June 1807. It was contended, on the part of the defendant, in the county court, that these acknowledgments were not sufficient to defeat or prevent the operation of the plea of limitation; but that court decided otherwise. It is not meant to be contended here, that the acknowledgments of the defendant, as proved, might not have been sufficient, lindera different form of declaration, and with other counts, to prevent the operation of the statute of limitations; but if is insisted that they were not sufficient to produce that effect in the present suit, and framed as is this declaration. The assumptions in the declaration are stated to have been made to Samuel & John Smith, in the life-time of John, and the suit is brought by Samuel Smith as surviving partner. The plaintiff, in order to let in the acknowledgment of the defendant before stated, ought to have adapted his counts to the nature of his proofs. This doctrine is incontrovertibly shewn, and clearly illustrated, by the law in relation to acknowledgments made by or to an executor or administrator, as such, and assignees of bankrupts or insolvents, as such. If a plaintiff declares on promises made by the intestate, and the defendant as administrator pleads the statute of limitations on which issue is joined, a promise made by the defendant as administrator will not be competent evidence to resist the limitation, but the plaintiff should have declared on an insimul computasset with the defendant as administrator; that is, Lie should have declared that he accounted with the defendant as administrator of and concerning a debt due from the intestate to the plaintiff, and upon that accounting the defendant as administrator was found indebted to the plaintiff, and being so found in arrear the defendant as administrator promised to pay. So if the administrator is plaintiff, and declares on promises made to the intestate, and the defendant pleads limitations, a promise or acknowledgment bv the defendant to the administrator within 3 years, will not take the case out of the statute; but the plaintiff ought to have declared that trie defendant accounted with the plaintiff as administrator of and concerning a debt due from the defendant to the intestate, and upon that accounting the defendant was found indebted, and being so found indebted promised to pay the plaintiff as administrator. Or in the foregoing instances the declaration may run (in the first case put,) that the hites-tate being indebted, the defendant as administrator promised to pay, or (in the second case put,) that the defen-<]ant 5eing indebted to the intestate, promised to pay to the plaintiff as administrator. So here by analogy it should have been declared that the defendant accounted, with the plaintiff, surviving partner of John Smith, of and concerning a debt due from the defendant to Samuel and John Smith, in the life-time of John, and being on that accounting found so indebted, he promised to pay to the plaintiff, surviving partner as aforesaid; or, that the defendant having received money for the use of-the said Samuel and John Smith, in the life-time of John, promised to pay to the said Samuel Smith, surviving partner of John, since the death of John. It will be observed that John Smith having died in June 1805, and the suit having been instituted in July 1809, no promise or acknowledgment made by the defendant to Samuel and John Smith, in the life-time of John, could possibly have been made within three years of the institution of the suit, and the declaration is obliged to assert what was impossible in fact, so as to appear to take the case out of the statute of limitations, that the promises were made in August 1806 to Samuel and John Smith, although John Smith had at that date been dead 14 months. There are many authorities, which establish these positions. In 2 Saund. 63, d, (note 6.) it is laid down, (that which is a consequence of the position contended for,) that if the assignee of a bankrupt declare that the defendant was indebted to the bankrupt, and promised the plaintiff, the assignee, to pay him, the plea of the statute of limitations, (hat the action did not accrue to the bankrupt within 6 years, is no answer to the declaration, which states that the promises were made to the plaintiff assignee; and if it were a good plea it would preclude the plaintiff from giving evidence of such promise. So where a similar action was brought, by the assignees of an insolvent debtor, for a debt due to the insolvent upon promises to pay the plaintiffs, as assignees, a plea of the statute, that the action did not accrue to the insolvent, is no answer to the declaration. This 'note refers to Kinder vs. Paris, 2 H. Blk. Pep. 561. In the same note to Saunders, 63 (f.) the law is laid down in a manner more precisely applicable to this case. It states, if in assumpsit by an executor all the promises are laid to be made to the testator in his life-time, the defendant pleads he did not promise within 6 years, and the plaintiff replies that the letters testamentary were sued out within 6 years of the institution of the suit, so that & years had not elapsed when the action accrued to the plaintiff as executor, the replication is bad; because the statute run from the lime the action accrued to the testator. So where in assumpsit by an executor, on a contract made with the testator, all the promises in the declaration are laid to be made to the testator; and the defendant pleads the statute of limitation, the plaintiff cannot in his replication, set, forth a promise made to himself without being guilty of a departure, any more than he can in such case give evidence of a promise made to himself within 6 years, upon cm issue joined on the plea of the statute of limitations, ¿launders refers toa long list of authorities of the highest character, and an intimation in Hcylin vs. Hasting, Car-thew, 471, to the contrary, which is asserted not to be law. So where to a declaration in assumpsit by the assignees of eh insolvent debtor, For money due before his insolvency, stating all the promises to have been made to the plaintiffs, the defendant pleaded that hedid not undertake anti promise, in manner and form as the plaintiffs declared, he cannot rejoin that the cause of action fust accrued to the insolvent, before the plaintiffs became assignees, and that 6 years liad elapsed after the cause of action first accrued to the insolvent, for that rejoinder would be a plain departure from the plea. Kinder vs. Paris, 2 II. Blk. Hep. 569,, (note a). Thus it will be seen by alt these decisions, that it is necessary for the plaintiffs, who bring their suits in a representative character, to lay the promises and assumptions to be made to themselves, (where so much time has elapsed since the cause of action first accrued that the statute of limitations attaches,) if they rely on such promises or acknowledgments to take the cases out of the statute. Mote-over, the authorities would never speak of promises and assumptions made to the plaintiff’s who sue in a representative character, if they could maintain suits, and counteract the operation of the statute of limitations, by proving promises to have been made to them in their representative character, although the declaration should contain no other counts than upon promises made to the original parlies. In 1 Chitty’s Plead. 204, it is stated — “That an executor or administrator may declare us si,eh for money paid in that character, and may join such count with counts on promises to the testator or intestate. So money had and received by the defendant to the use of the plaintiff’ as executor, on an account stated with him as executor of monies due and owing to the testator, or to the plaintiff as executor, may be joined with counts on promises to the testator or intestate.” And “where six years have elapsed since ike death of the testator or intestate, or it may on any other account be material for the plaintiff to avail himself of a promise or ae • knowledgment since the death, counts should be introduced in the declaration on promises to tin executor in that character, for otherwise, such promise or acknowledgment cannot be. given in evidence.” Ibid 204, 205,343. SareM •vs. If ¿nr, 3 Nasi, 409. Hickman vs. Walker, TPillcs 29. In pursuance of these principles, maintained by incontrovertible authorities, Chitty, in his 2 vol. 46, gives the forms of the counts proper in such cases, with reference to the instance of a surviving partner who sues tor a debt due to him in that right. Before introducing the counts on promtses to the surviving partner, Chitty expresses himself in these remarkable words, shewing the application of the principles in cases of executors or adms-nistrators to cases of surviving partners. “If the debt foe considerable, or the deceased partner has been dead, six years, or it maj on any other account be advisable for the plaintiff to avail himself of a promise or acknowledgment to.him since the death of his partner,- insert the counts,” $*c. and referring to Sarell vs. Wine, 3 East, 409.! In Hickman vs. • Walker, Willes, 29, the opinion of the court concludes in these words: ■ “Because all the promises in the declaration are laid to be made to the testator, an executor cannot give evidence of the promise to himself within six years; and if he cannot, setting forth á promise to himself in his replication, as the executors have done in the present case, is a departure in pleading, and for that reason also the replication is not good.” In Secar vs. Jltkinson, 1 H. Blk. Rep. 105, the court say, it is a common manner of declaring against executors and administrators, to save the statute oflimitations, that executors and administrators promised themselves to pay, &c. In Beard vs. Cowman, 3 Harris & MuHenry, 153, it was decided by the general court, that evidence that the executor had promised to the plaintiff executor, would not support a declaration on promises to the testator. The forms of counts on promises by executors and administrators in 1 Harris’* Ent. 161, 162, 179, show the practice in this State. In Tom vs. Goodrich, 2 Johns. Rep. 213, it was held that the promise must be stated to have been, made by the partner living at the time, alone; if stated to be by the deceased partner, and his survivors, it will be fatal. 3 Chilly’s Plead. 19, 20, gives the forms of declarations against a surviving payee, and a surviving maker of a promissory note.
As the objections urged against the opinion of the court below in the second bill of exceptions, are considered to be fatal to the plaintiff’s recovery, it is deemed wholly unnecessary to say any thing upon the first bill of exceptions.
The first bill of exceptions seems to be abandoned by the appellant’s counsel; but to the second, it was urged that proof was admitted which does not apply to the issue. It has been decided that it may be left to the jury to ascertain whether a promise had been made so as to take the case out of the act of limitations. 1. In this case there was sufficient proof to take the case out of the statute. . It was not necessary that it should be an express promise. Lloyd vs. Maund, 2 T. R. 762. Lawrence vs. Worrall, Peake’s iV. P. 93. Ball, on Lim. 188, 190.
2. The principal question is, whether a promise or acknowledgment made since the death of one of two partners, can sustain a case where the promise is laid to have been made to both? No authority has been produced to show that an action like the present cannot be maintained. If it could not, there must be such cases,in the books. The practice of declaratingon promises by executors, &c. seems to have been only applicable as to executors, administrators and assignees, of insolvents, and not to actions by surviv» ing partners. Executors, &c. appear in a representative character, having nothing to do with the cause of action. But it is different as to a surviving partner, where the promise to him revives the original claim. The right of action is the same, and the surviving partner enforces the right, and he is not in the predicament of an executor, &c. who comes in by assignment, &c. or by transfer of law, as where a promissory note by endorsement is transferred, and the endorsee receives the legal right. Suppose an action on a promissory note endorsed by A to 13, and the act of limitation is pleaded — an acknowledgment to A would enable B to recover. An acknowledgment by the party restores the right of action which was before taken away. No new consideration is necessary to take it out of the statute of limitations — a simple acknowledgment revives the original consideration, and restores the party to his original right. The statute does not extinguish the debt, but bars the remedy. Ball, on him. 188. In the case be-tore the court the plaintiff was the original creditor, and the whole interest at law devolved on him. The acknowledgment relied on is, that the defendant received the money for the plaintiff and J. Smith, that admission removes the bar of the act of limitations. The cases cited by the counsel for the appellant, relates to executors, administrators and assignees, except Tom vs Goodrich, 2 Johns, liep. 213, which was a case against a surviving partner, and to involve a person as a partner, his deceased partner must be alive'at the time when the debt was created. It is incumbent on the counsel for the appellant to show that the cases of executors, administrators and assignees, apply toa surviving partner. The precedents in Chilly are no authority, and he only advises the change out of abundant caution.
There are two questions — 1. The sufficiency of the acknowledgment without reference to the pleadings. 2. Its sufficiency in connexion with the pleadings. As to the first, the acknowledgment is not sufficient if the pleadings are correct. The statute of limitations is considered almost as a dead letter. The courts seem to interpret it so as to evade its operation. They have said that an acknowledgment will take the case out of the statute, and although it was not a new promise, yet it implied a new promise. The tide is now setting the othei way. Courts are now more strict, and will not go further to evade the statute, and was the question to be decided now for the first time, a different rule would be established. 2. The acknowledgment is not sufficient under the pleadings. What was the issue on the plea of limitations? It was that the defendant did assume within three years, in manner and form as stated in the plaintiff’s declaration, which was that he assumed to pay the plaintiff and J. Smith, in the life-time of J Smith. If it had been expressly proved that the defendant had promised to pay ihe plaintiff, would that be the promise as laid in the declaration, and as the plaintiff took it npon himself to prove? But no express promise is proved — there was simply an acknowledgment that'n debt did exist. It was an implied promise, and the plaintiff was bound to prove that which he would be bound to prove if the promise, on which the cause of action is founded, was expressly proved. The plaintiff was not in a better situation than if the promise bad been made more than three years. A promise to a dead man is of no effect. A promise to the plaintiff cannot by relation be a promise to S. and J. Smith; if it can, why cannot a promise to an executor by relation be a promise to the testator? Here the declaration counts on one promise, and the proof is as to a different promise. This ■will apply as well in the case of an executor as of a surviving partner. The surviving partner sues no more in his own right than an executor does. He comes in a representative character, although he has an interest. He does not claim to be entitled exclusively for himself, but as a surviving partner representing (he film. If he recovers, he recovers under an accountability in like manner asan executor. The representatives of the deceased partner may call on him and make him account. The predicament of a surviving partner, in the eye of reason, is identically the same with that of an executor. The doctrine of relation is wholly inadmissible, that the acknowledgment should relate to; the original promise. Here a promise is laid as ma-de to S. and J. Smithy which the defendant denies; but if made, it was not made to A. and J. Smith, within three years. The proof is that the defendant acknowledged the debt to S. Smith, and that when the acknowledgment was made J. Smith was dead. Is this maintaining the issue joined? The case cited are of executors, &c. and that where a promise is made to the executor, there must be a count on that promise to prevent limitation from barring. In Green vs. Crane, 2 Ld. Maym. 1101, the defendant owned the debt to the executor, and promised him to pay the debt which was due to the testator. There was no count on the promise to the executor; and on the plea of limitations, it was held that the promise was not within the-issue, and could not be given in evidence. The case of an executor may be distinguished from that of a surviving partner in point of fact, but not in principle. They are both in representative characters; and if not in representative characters, they are not the persons to whom the promise was made. A promise made to one man is not a promise made to two. But it is said, that we have produced no case directly, in point. It may be asked, why no case is produced showing that the decision has been otherwise? It may be answered, that ever since the question was settled as to executors, &c. the case of a surviving partner has been considered as settled, and the forms, as to surviving partners, have been made to conform" to those adopted in cases of executors, &c. Elementary writers are to be regarded, and Chitty, if alone, would be high authority; but without his autnority the case is clear.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
