Commonwealth Insurance v. Whitney , 42 Mass. 21 ( 1840 )

Shaw, C. J.

The only question is, whether this action is barred by the statute of limitations, or whether it is within the exception of attested notes. There is a slight difference in phraseology between the St. 1786, c. 52, § 5, and the Rev. Sts. c. 120, § 4. In the former it is thus, “ This act shall not extend to bar any action upon any note, in writing, signed by any person and attested by one or more witnesses, whereby such person shall promise to pay any sum of money, mentioned in such note,” &c. In the revised statutes, the provision stands thus, “ None of the foregoing provisions shall apply to any action brought upon a promissory note, which is signed in presence of an attesting witness.”

It does not appear to have been the intention of the legislature to change the law on this subject, but to express the same rule, in shorter and more perspicuous terms. We think therefore the term “ promissory note,” in the revised statutes, expounded in reference to die provisions for which it was substituted, is not to be limited st'icdj to negotiable notes, but was intended to apply to any note n writing by which one promises to pay money to another. It s not a true test therefore to inquire, whether the promise constitutes a negotiable note. With this view of the construction of the statute, the court are of opinion that the memorandum of November 4, 1831, is a promissory note within the statute. It is made on good consideration, viz. the payment of an existing note, then near being barred, and purports to be for value received. It is a promise to pay a sum of money on demand. The sum and the name of the payee are not expressed in words; but they are expressed with equal exactness and certainty by reference to the note on the same paper. Grinnell v. Baxter, 17 Pick. 386. It is a new promise, in writing, on a good consider ration, to pay a certain sum of money to a certain company on demand, and signed in presence of an attesting witness. It is a note, on which, if properly set out in a declaration, an action would lie. This case is quite distinguishable from that of Gray v. Bowden, recently decided in Essex. There were no promissory words, in the memorandum in that case, constituting it a new substantive contract; but only words of acknowledgment, admitting that the old note was due and unpaid.

But there was another exception taken to the decision of the court of common pleas, which deserves consideration. It appears, by the bill of exceptions, that the defendant offered to prove, that there was no consideration for the memorandum of 4tli November, 1831, but the note of 24th September, 1824; that the latter was given for a premium of insurance, on the schooner New Orleans ; that the schooner was unseaworthy, so that the risk never attached, and that the plaintiffs had refused to pay a loss which accrued by some of the perils insured against, because the schooner was unseaworthy. The court are of opinion that this evidence ought to have been received, and that the facts, if proved, would have constituted a good defence. It is a well established rule of the law of insurance, that if the vessel is unseaworthy at the time the risk would commence, the policy does not attach, and no premium is,due ; and if a premium note has been given, the consideration fails, and it cannot be recovered. Russell v. De Grand, 15 Mass. 35. Taylor v. Lowell, 3 Mass. 331. Merchants’ Insurance Company v. Clapp, 11 Pick. 56 The note in suit, being but a continuance or renewal of the pro mium note, the same defence which would be good against the original note, may be made to this. If the consideration of that failed, there is no legal consideration foi this.

Exception sustained, and the verdict in the court of common pleas is set aside, and new trial to be had at the bar of that court,