Quimby v. Putnam , 28 Me. 419 ( 1848 )

The opinion of the Court was drawn up by

Shepley J.

— The suit was commenced on April 24, 1847, upon a promissory note made by the defendant and Ira Putnam, since deceased, on November 7, 1839, payable to the plaintiff on May 24, then next, with interest. The defendant by a brief statement presented the statute of limitations as a defence. There was an indorsement, of $30,71 made upon the back of the note as paid on January 11, 1842.

The question for consideration as presented by a bill of exceptions is, whether a payment made by one of the two joint promisors in the presence of the other will be evidence of a new promise made by both. Such would have been its effect before the Revised Statutes were in force. Dinsmore v. Dinsmore, 21 Maine R. 433.

The counsel for the plaintiff contend, that the Revised Statutes of Massachusetts and of this State, are on this subject in every essential particular copied from the statute, 9 Geo. IV. c. 14 ; which was decided not to prevent a payment made by one of several joint contractors being considered as evidence of a new promise made by all. Wyatt v. Hodson, 8 Bing. 309. But in this they are in error.

The English statute made provision, that an acknowledgment or promise made in writing by one should not affect the rights of his co-contractors; but it made no provision respecting the effect of a payment made by one upon the rights of the others. The effect of such a payment was left to be determined by the common law, by which it had been already decided.

By the Revised Statutes of Massachusetts and of this State, the effect of such a payment was not left as before to be determined by the common law. Rev. Stat. of Mass. c. 120, § 18; of this State, c. 148, § 24. These sections provide, that one of several joint contractors shall not lose the benefit of the provisions of the statute by reason of a payment made by another. It has accordingly been decided, that a payment by one joint contractor made before the enactment of the Revised Statutes would not, since they were in force, have the effect to prevent the operation of the statute upon the contract, as it respected others. Pierce v. Tobey, 5 Metc. 168.

The payment in this case was made since the Revised Statutes were in force, and they must determine its effect. The fact that it was made in the presence of the defendant, cannot alter its effect, for its full effect with respect to him, as a payment, is determined by the statute. His presence might show, that he admitted the debt to be due, but such an admission, not made in writing and not arising out of a payment made by himself, can have no effect upon his rights since the Revised Statutes were in force.

The- instructions appear to have been entirely correct.

Exceptions overruled.