Small v. Rose , 97 Me. 286 ( 1903 )

Peabody, J.

This case is on exceptions of defendant to the admission of evidence. It was an action on a promissory note, bearing date December 21, 1882, given by the defendant to one O. W. Small, plaintiff’s testator.

The defense is the statute of limitations. There were certain indorsements on the note but not in the handwriting of the defendant, and it does not appear that evidence was introduced tending to show any payment on the note prior to March 25, 1897. As evidence of a payment made by the defendant on that date, the plaintiff introduced, supported by his suppletory oath, the small account-book found among the effects of the deceased in which was written in the handwriting of the deceased under the heading of money received and under the date of March 25, 1897, the following words: “A. H. Rose $25.00.” This corresponded in date and amount to one of the indorsements on the back of the note. To the admission of this evidence the defendant seasonably objected and excepted.

Revised Statutes, ch. 81, § 100, provides that, “No indorsement or memorandum of such payment made on a promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment is made or purports to be made, is sufficient proof of payment to take the case out of the statute of limitations.” This statute does not affect the admissibility of other evidence tending to show such payment, where the admission of such evidence does not conflict with the established rules. Sibley v. Lambert, 30 Maine, 253.

The entry in question was part of a private cash account in the back of a small diary. The account was kept with apparent regularity, and the entry would have probative force to remove the statute bar if it was apparently made by the testator against his interest.

So far as appears from the case as presented, there was no evidence to overcome the presumption which arises from the date of the note that it had become outlawed long prior to the date of the memorandum of March 25th, 1897; so that in considering the effect of a cash entry of that date we must have in mind that at that time a payment on account of the note would have the effect not merely of reducing the indebtedness, but also of reviving the note and making, it enforceable against the defendant.

Had the entry in the cash-book been made a reasonable time before the note became outlawed, its effect being an admission of the reduction of the 'debt, it might have been admissible if offered in evidence by the plaintiff as an entry made by a person since deceased apparently against his interest. Taylor v. Witham, 3 Ch. D. 605; 1 Greenl. Evidence, § 147- But after the statutory bar had become complete it was clearly not against his interest, but on the contrary, to his great advantage to show a part payment on the note. This destroys entirely the probative force of the written memorandum and makes it inadmissible in evidence to prove the fact of the payment. Rose v. Bryant, 2 Camp. 321; Wood on Limitations, § 115; 1 Greenl. Evidence, § 149; Libby v. Brown, 78 Maine, 492.

Exceptions sustained.