Carter v. Cross , 7 Gill 43 ( 1848 )

Spence, J.,

delivered the opinion of this court.

This was an action of assumpsit, in Baltimore county court. The defendant pleaded non assumpsit. Non assumpsit, infratres annos, and actio non. On these pleas issues were joined.

[The judge, adverting to the evidence and prayers as before stated, proceeded to say:]

We have presented the prayers of the defendant at length, to shew that the error, or defect in the declaration, namely, that it contained no count on the promise to the administratrix, (a point or question which was relied on in the argument,) does not appear by the record, to have been raised or made in the county court, and upon which that court rendered judgment, and, of course, it cannot, under the provisions of the act of 1825, ch. 117, be permitted to be urged or insisted upon in the trial of this appeal.

The question which the two first prayers raises, is the force and effect of the evidence, to remove the bar of the statute of limitations.

The execution of the two receipts, of March the 22nd, and April the 2nd, 1838, is admitted. The witness, on whose evidence the plaintiff below relied, to remove the bar of the statute of limitations, was John Hurst.

The receipts admitted in evidence, prove the receipt by Carter of the money, the object for which it was received, and Carter’s promise to return it to Ellen Cross, in the event of the creditor or creditors of J. A. Cross, refusing to receive the composition of thirty-three cents in the dollar, and execute a release to J. A. Cross. Hurst’s evidence proves the refusal of Barry and Hurst, to receive the composition and execute the release. The facts thus far referred to, occurred more than three years before the institution of this suit. But Hurst, in his evidence, further states, that Carter subsequently, at various times, shortly before and since this suit was brought, stated to said Hurst, that he had, shortly after the refusal of Barry and Hurst, loaned the amount of money offered to them, to a certain Raymond or Anchor; that his motive for making Said loan was, that he wanted to get rid of the money.

That in these conversations Carter never stated, that he had paid said sum of money to Ellen Cross, or her administratrix, hut always said, he had not the money, he had loaned it away, and never would pay it, unless the law compelled him. This is a full admission on the part of Carter, that the sum of money which he offered Barry and Hurst, as a composition of their debt due from ./. A. Cross, and which they refused to accept, was never returned or paid to Ellen Cross. Garter, in all the conversations detailed by Hurst, never said, he had paid the said sum of money to Ellen Cross, but always said, “he had not the money, he had loaned it away, and never would pay it, unless compelled bylaw.” If the question rested upon these admissions of Carter, without any qualifications, could there remain a doubt, but that they were an acknowledgment of a present subsisting debt, from which the law would raise an implied promise, by which the bar of the statute would be removed? What excuse did Carter offer for not paying this money? that he wanted to get, rid of the money, as he did not know what else to do with it, and he thought it was doing a favor to Ellen Cross, by loaning it out in that manner, as the security was then good; that he had taken the bond of Raymond and Anchor, but the same had been mislaid by him; Anchor had, shortly after such loan, died insolvent, and Raymond had gone away and proved worthless. The excuse offered for not paying the money, is a clear and unequivocal admission, that it never had been paid to Ellen Cross, but that he wanted to get rid of the money, which, in his receipt, he promised, under a certain contingency, to return to Ellen Cross, after that contingency did happen; he thought he was doing her a favor, instead of returning or paying her the money, to loan it out on securities, which very soon proved worthless.

Does the excuse set up by Carter, if taken as true, furnish a legal or moral excuse, why he should not pay the money? It was unquestionably his moral duty, when the money was refused by Barry and Hurst, to have performed his promise and discharged his legal obligation, by reluming the money to Ellen Cross, as he contracted to do when he received it, and not to have loaned it out on securities, which very soon after proved worthless, without the knowledge or consent of Ellen Gross.

The acknowledgment of Carter, in the language of this court, in Keplinger vs. Griffith, 2 G. & J., 301, ‘‘was a clearly implied admission, that the debt remained due and unpaid, and the excuse alleged for not paying it, furnished no real objection to the payment of it, if true.”

The court committed no error in rejecting the defendant’s third prayer, on the authority of Newson's Administrators, vs. Douglas, 7 Har. & J., 453, and Fridge vs. The State, use of Kirk, 3 G. & J., 103, the question of interest was properly left to the jury.

JUDGMENT AFFIRMED.