Keplinger v. Griffith , 2 G. & J. 296 ( 1830 )

Buchanan, Ch. J.,

delivered the opinion of the Court.

This suit was brought on a promissory note, given by the appellant to John Kiems, who endorsed it to C. E. Chevalier, by whom it was endorsed to the appellee, in a regular course of negotiation, before it was at maturity. The pleas of non assumpsit, non assumpsit infra tres annos, and actio non, 8fC. were put in, on which issues were taken. The Judge here, after referring to the evidence contained in the bill of exceptions, stated, that upon the pleadings and teste mony, the appellant moved the opinion and direction of the Court to the jury, that the appellee was not entitled to recover, on three grounds. First, that the making of the note by him, and the several endorsements thereon, had not been proved, nor any evidence thereof given. Second, that a new promise by the appellant, within three years before the commencement of the suit to pay the note, so as to remove the bar of limitations insisted on, in his second and third pleas, had not been proved, nor any evidence thereof given. Third, that no evidence had been given on the part of the appellee, that he took, or offered to take any discount from the note, or otherwise perform the condition, on which the supposed new promise was made. Neither of these objections to the right of the appellee to recover was sustained ; but the Court before which the cause was tried, was of opinion, and so instructed the jury, that the appellee was entitled to recover, if they believed the witness; in which we concur with that Court. As to the first point, the suit was against the appellant as the maker of the note, the execution of which, was a matter within his own knowledge ; and surely his offer to pay it, when called upon after it became due, was sufficient evidence of his signature, a sufficient admission that he was the maker of it. The several endorsements by which it came to the hands of the appellee, being set out in the declaration, it became necessary at the trial to prove them; and as it is not to be supposed that the appellant would have paid it to any one, whom he did not know to be entitled to receive it, his offer to pay it to the agent of the appellee, was a sufficient admission of the endorsements, and of the appellee’s right to receive it. It amounted to an admission, that every thing had been done, necessary to the appellee’s right to receive it, and that there was no objection to his paying the note, and superseded the necessity for further proof. Sidford and another vs. Chambers, 2 Serg. and Lowb. 410. In Jones vs. Morgan, 2 Camb. Rep. 474, which was an action against the drawer of a bill of exchange, dishonored for non-payment after being accepted, it was decided that though ft was unnecessary to have stated the acceptance in the declaration, yet as it was stated it must bo proved ; but that a promise to pay after the bill became due, was a sufficient admission, as well of the acceptance, as of the hand writing of the defendant. The same principle will be found in Lundie vs. Robertson, 7 East. 231.

As to the second point, in Oliver vs. Gray, 1 Harr. and Gill, 204, it was ruled by this Court, that an acknowledgment of the debt, with a naked refusal to pay, or a refusal accompanied with an excuse, for not paying it, which in itself implies an admission that the debt remains due, and furnishes no real objection to the payment of it, is sufficient to take a case out of the statute of limitations. Wow this is just that case. The offer to pay the note, was not proved to have been made within three years before the bringing the suit; but the making of it by the appellant, and the several endorsements upon it, being established, his saying when spoken to on the subject, only a few days before the suit was instituted, “ that he could not pay it, that Chevalier had charged him too much, and some discount must be taken from it; and that he must see Mr. Chevalier on the subject,” 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 note came to the hands of the appellee by endorsement in a regular course of negotiation, and if the suit had been brought within three years, it would have been no defence to the action, that Chevalier had charged the appellant too much, for it would seem to have been given on account of some transaction with Chevalier; and the admitted continuing existence of the debt, carried with it the assumption raised by the law. And as to the third point, that the appellee had offered no evidence, that he took, or offered to take any discount from the note, it is answered by saying, that he was under no obligation to make any discount. The appellant was entitled to no dir; count as against him ; nor against any body else, as far as appears, for there is no evidence in the record on the subject. And even if he could have been entitled to a deduction from the amount of the note, in a suit between him and Chevalier, there is no pretence for saying that the note was subject to the same deduction in the hands of the appellee.

JUDGMENT AFFIRMED.