Lamar v. Manro , 10 G. & J. 50 ( 1838 )

Archer, Judge,

delivered the opinion of the court.

The plaintiff relying for recovery upon a promise, as he alleged, to pay the balance due upon a single bill, offered in evidence to sustain his action, and to furnish a proper foundation for the promise, a single bill, which bears date upwards of twelve years before the institution of the suit; and the admissibility of the single bill in evidence, is resisted, upon the ground that the act of limitations of 1715, ch. 23, sec. 6, declares that no bill, bond, &c. shall after twelve years be pleadable or admitted in evidence, except, &c.

The object of the legislature in the enactment of this section, was not to prohibit the giving in evidence of a bill or bond in every case where it might be above twelve years standing, or in any case where it was not itself the foundation of the action. Anterior to the act of assembly, no law was in existence limiting the' time of bringing suits upon single bills or bonds; but to defeat recoveries on ancient bonds, defendants were obliged to resort to a presumed payment from lapse of time.

But the legislature of 1715 deemed it necessary to prescribe a period of time within which suits should be instituted on bonds, as well as a period within which other actions should be brought. This is shown as well by the title of the act, which is an act for the limitation of actions, for avoiding suits at law, as by the preamble, which declares that,for as much as nothing can be more essential to the peace ■and tranquillity of this province, than the quieting of the estates of the inhabitants, and for the effecting of which no better measures can be taken than limitation of time for the commencing-of such actions, fyc.from the time of such action accruing: and such has been the uniform construction of the act, it having been considered necessary to plead the statute in defence to a bond, which would have been wholly unnecessary if the construction attempted to be placed upon the law conformed to the legislative intention. 4 Harr, and John. 541.

In this suit no action has been instituted on the single bill, but it is an action of assumpsit, upon an express promise to pay whatever balance might appear to be due on the single bill; and the bill is introduced, not as the cause of action, but as an inducement to, as explanatory of, and as furnishing the legal basis of the promise; and in this point of view, we think the court were clearly right in receiving it as evidence.

Nor could it be objected that the evidence was inadmissible, without proof of the assignment by the assignor, or proof of his hand-writing, when the defendant had admitted that the plaintiff had held the note, and that it was assigned to him, and had recognized his ownership of the note, by making payments thereon to him, acknowledging his indulgence, and promising upon a fair statement of the balance, to pay what might be due thereon. These were all facts, from which the inference might legitimately be drawn, that the assignment or order endorsed thereon to pay to the plaintiff, was in the hand-writing of the obligee.

The prayer contained in the second bill of exceptions, supposes that a conditional promise had been made by the defendant to pay, and that the condition was, that he would pay whatever upon a fair settlement should be justly found to be due; and on this construction of the evidence, the court are desired to say, that there could be no recovery unless the condition had been complied with, or there had been an offer on the part of the plaintiff, to make a settlement. But according to our views of the evidence, there is nothing to warrant the prayer. The evidence has no reference to a settlement between the parties, nor do we believe the promise conditional in the sense in which the appellant’s counsel insist it is. The defendant did not think as much was due as the statement indicated; supposed he was entitled to other credits, and said upon a fair statement he would pay whatever was justly due; but that it was not at that time convenient for him to pay, which we consider in effect a promise to pay whatever was justly due on the bill. Nothing has been offered in evidence to impeach the statement in the first instance presented to the defendant, except his impressions; and to suppose that he meant as a condition of his payment, that the statement should be copied and again presented, would be imputing to the defendant a folly which he could not have intended, and which the general tenor of the evidence would not justify. Give me all the credits to which I may be entitled, and I wall pay you the balance, is in substance the evidence. The defendant does not say, they are to come to an agreement, or settlement, in relation to the credits, or that he should be the judge of the credits to which he was entitled ; but that he would pay what was justly due, and when the plaintiff has shown at the trial what was justly due, he has done all that was necessary to entitle him to recover. We therefore consider there was no error in the second bill of exceptions.

From the preceding view which has been taken of this promise, it would be sufficient to sustain the action at the suit of the assignor of this bond, had the promise been made to him, because a good and valuable consideration once existed, which becoming inoperative by positive law, always furnishes a sufficient foundation for an express promise. This position is not denied; but it is insisted that as the assignee held only an equitable interest in this bill, and could maintain no suit in his own name, without the use of the name of the assignor, that an express promise made to him will not enable him to maintain this action. Without meaning to determine whether'since the act of 1829, ch. 51, he could or could not have Sued in a court of law upon this bill in his own name, we must be permitted to say that the distinction attempted to be taken between express promises made to him who held the legal obligation, and to one who merely holds the equitable right to such an obligation, is .unsupported either by reason or authority. The assignee takes the place of the assignor, .and being invested with all his beneficial rights, is protected in them, both in courts of law and in equity, against all interferences by the assignor, prejudicial to his interests; and if the obligor Was in conscience bound to pay the assignor, riotr withstanding the legal impediment interposed by the statute of limitations, is he not, equally bound to pay him who is equitably invested with all the rights of the assignor, and ought not the express promise to be as binding in the one case as the other ? Had this been an open account assigned, an express promise to the assignee, with notiee of the assignment, would have enabled the assignee to have recovered at law in his own name. 1 Harr, and John. 114. The antece? dent legal obligation furnishes the consideration for the promise, and having been assigned, the equitable holder may enforce the promise at law. The cases cited by the appellant’s counsel, do not in our opinions maintain or countenance the distinction attempted to be taken; but the third bill of exceptions embraces another proposition equally untenable.

It is supposed in the prayer that the plaintiff could not be permitted to resort to other evidence than the promise. The prayer is very general in its terms,- and if granted as an independent proposition, would have excluded all other evidence offered by the plaintiff, than the promise itself, which proposition is entirely inadmissible. The other evidence offered as inducement to the promise, we have seen, was admissible, and the promise being sufficient, whatever might aid and support it, or tend to show what Was justly due on the bill, was just as competent as the bill itself. ' But this was offered, probably, as a proposition connected with that which had preceded it, and if we could have believed the promise had. been insufficient to sustain the action, other evidence could not be resorted to, as the acknowledgment of the defendant, that a balance was due on the bond, for that would not have sustained the action. 3 Gill and John. 491. We are there-" fore of opinion the court were right in their refusal to grant the defendant’s prayer, as contained in the third exception.

It will follow from the preceding opinion, that the court were also right in refusing the defendant’s prayer in the fourth exception, and agreeing with the county court in all the opinions by them expressed, we affirm the judgment.

JUDGMENT AFFIRMED.