Rogers v. Waters , 2 G. & J. 64 ( 1829 )

.Buchanan, Ch. J.

delivered the opinion of the Court.

'This case appears, under former decisions of this Court, fto be clear of difficulty.

■It is an action of Assumpsit, brought upon a promissory mote given by the defendant to Jeremiah Yellott, the appellant’s testator, on the 17th of December, 1804, and payable six months after date, more than twenty years ■before the bringing of the suit. The issues are upon .the pleas of non assumpsit, non assumpsit infra tres annos, and actio non accrevit infra tres annos.

To support the issues on his part, and to take the case ,o.ut of the operation of the Act of Limitations, the appellant produced and read to the jury, a letter addressed to him on the 22d of October, 1822, by the defendant, in which he admits that the money for which the note was passed has not been paid, but alleges, that under an arrangement between Jeremiah Yellott, and the Vestry of St. Peter's. Church, to which body both he and Yellott belonged, it was given in order to close the account for a balance due ta Yellott, on account of money laid out by him in the completion of the church, to be discharged by the application to that purpose, of money arising from the pew rents.

In the case of Wyman vs. Gray, 7 Harr. and Johnson,, 409, decided by this Court, it was determined, that a note given by an individual corporator, for a debt due by the corporation, and not by him in his individual capacity, and without any new or superadded consideration moving to himself, was a promise to pay the debt of another, and void, there being no sufficient consideration to support it.

Here the letter of the defendant is the evidence produced and relied on, by the appellant himself, and that letter proves, that the note, which is the subject of the suit, was given for a debt due, not by him in his individual character, but by the Vestry of St. Peter’s Church, a corporate body, of which he was a member, but without any consideration moving to himself. It is therefore a promise to pay the debt of another, without consideration, and nudum pactum and void. And the question presented by the bill of exception, is, whether the letter of the defendant had the effect to take the case out of the operation of the Act of Limitations ?

In Oliver vs. Gray, decided by this Court at the June Term, 1827, it was held, that an acknowledgment to take a case out of the Act of Limitations, must be of a present subsisting debt, unaccompanied by any qualification or declarations, which, if true, would exempt a defendant from a moral obligation to pay; and that an admission, that the sum claimed has not been paid, is not sufficient without some further admission, or other proof, that the debt once existed. In this case, the defendant does, in his letter, acknowledge that the sum claimed has not been paid, but at the same time he insists, that the note was not given for a debt due by himself, but by the Vestry of St. Peter’s Church, under an agreement between the vestry and Yellott, that it should he signed by him to close the account, but to be paid out of money arising from the pew rents. There was no consideration moving to the defendant, nor any antecedent debt due by him individually; no consideration of forbearance expressed in the note, as the consideration upon which it was given, as has been supposed. Nor is there any evidence of such a consideration, de hors the note. It is, to be sure, made payable six months after date, but it was given (according to the appellant’s own proof, as contained in the defendant’s letter, which, as he has introduced it, he must take it as it is) for the purpose of closing account, on the settlement of which that amount was found to be due to him from the vestry of St. Peter’s Church, which by no means proves, or furnishes the slightest presumption, that the forbearance of Yellott to sue the vestry, was purchased by the giving of that note; on the contrary, if we were to deal in conjecture, it would rather seem, that the favor, if any, was a favor to him, in thus closing an account open upon the books. And perhaps nothing is more common than the closing accounts by passing notes, payable at future days, without the consideration or forbearance being thought of. To suppose that it was given for the consideration of forbearance, looking to the note itself, would be to give to it a construction unauthorised by any thing appearing upon the face of it, and to offer violence to the evidence, which asserts that it was given for the purpose only of closing an open account, and being the acknowledgment of the party offered by the appellant to take the case out of the Act of Limitations, and the only evidence in the cause, except the note itself, he must be content to take it altogether, as it stands, and cannot garble it, and select such parts as will suit his purposes, and reject the residue; otherwise it would be to take the case out of the Act of Limitations by other proof than the acknowledgment of the defendant, and that cannot be: which would be the effect of the remote inference, that the note was given for the consideration of forbearance, drawn from the mere circumstance that it is made payable at a future day, in opposition to the allegation that the object of it was to close the account between Yellott and the vestry, and that it was to be paid out of money arising from the pew rents; which shows that the payment of it by him individually, was not contemplated by any of the parties.

That part of the letter relied upon, is in these words: “On settlement of an account with Capt. Yellott, some time in the month of February, 1804, there appeared a balance due him of about $>311, being money disbursed and laid out by him in the completion of St. Peter’s Church, to close which, it was agreed by the vestry and Capt. Yellott, that some one of the vestry should sign a note for the balance, payable six months after date; and it was finally concluded, that myself, as one of the vestry, should sign that note, and that money arising from the pew rents, should be applied to the payment of the same.”

The note then, being a promise, or agreement to pay the debt of another, and void for want of a sufficient consideration moving to the defendant, there never was an existing debt due by him; and his acknowledgment that the sum claimed has not been paid, is not an admission of any present subsisting debt. And the understanding at the time the note was given, that it was not to be paid by him, but out of money arising from the pew rents, exempts him from any moral obligation to pay it. I think, therefore, that the acknowledgment of the defendant, was not sufficient to take the case out of the Act of Limitations, and that the direction given to the jury was right.

judgment affirmed.