Newhall v. Field ( 1905 )

OPINION OF THE COURT.

MANN, J.

1 The statute of limitations is a statute of repose. It does not discharge the debt or obligation, but merely takes away the remedy of collection by judgment and execution. This proposition is elementary and no citations are necessary to establish it.

It is also a well-settled principle of law that where a party has more than one remedy he may choose the one he will follow, and the fact that the statute has run against one remedy is no bar to-another, 19 Am. and Eng. Ency. of Law (2nd Ed.) 512, and citations in note 7. Missouri Savings and Loan Co. v. Rice, 84 Fed. 131.

So a party having a right of action against two or more defendants may sue one, although the bar of the statute may prevent a recovery against the other. Moore Ad. v. Gray, 26 Ohio, St. 525; Camp v. Basturck, 20 Ohio, St. 337.

The cases above cited’ are analogous to the case at bar. In each one co-sureties, or joint makers of a note, were pleading the statutes limiting the time when claims might have been filed against the estate of a deceased cn-surety of joint maker.

In 27 Am. and Eng. Ency. of Law (2nd Ed.) at page 511, the writer says: “Where the principal is dead, the surety is not discharged by a failure of the creditor to .present the claim, and thus procure it to be paid out of the estate, even though the surety requests him to do so,” citing numerous authorities in support of the proposition.

Under Secs. 2942 and 2946, Compiled Laws of New Mexico, the appellee might have sued either Mrs. Sanchez or Mr. Field, or both, during her lifetime upon the note in question, and her death did not change the remedy so far as appellant is concerned.

The holder of the note had his choice of remedies.

The note might have been collected from the estate by filing it as a claim within the period prescribed by law, or the legal-holder could bring suit against Mr. Field in a court of competent jurisdiction to recover the amount due thereon. He chose the latter remedy, and appellant cannot complain. Appellant might have paid the note himself and set it up as a claim against the estate and saved himself from loss; but having failed to do so he cannot escape liability simply because the time had expired when claims could be filed against the Sanchez estate.

2 An account stated includes only the items set out and included in the statement of account. In Perking v. Hart, 11 Wheaton 237, the court, at pase 256, says: “The the rule is the same in principle, at law; a settled account is only prima facie evidence of its correctness. It may be impeached by proof of unfairness or mistake, in law or in fact; and if it be confined to particular items of account, it concludes nothing in relation to other items not stated in it. The legal conclusion, therefore, insisted upon by the defendant that the plaintiff is precluded from recovering in this action for the two items claimed to have been due before the two accounts spoken of were rendered, is not correctly drawn; unless it appeared, from the point reserved, that these two items were included in what is styled the account stated.”

This case is cited and the above rule adhered to in Wiggins v. Burkham, 10 Wall. 129, and Oil Co. v. Van Etten, 107 U. S. 325; Campton v. Seymour, 31 Atl. Rep. 889; Burrill v. Crossman, 91 Fed. 543.

In the case at bar it is not even claimed that the note sued upon was actually included in the statement of the account rendered by the receiver of the bank to My. Field. The latter says in his testimony, (Transcript p. 40) ; “I do not want anybody to understand me as saying that I ever specifically paid that note. I do not claim that. If I had, I would have taken it up. What I do claim is that I settled my liability to the bank on the terms stated in the letter.”

' The letter, or letters, of Schofield do not pretend to contain a statement of the account. They only show that an account was rendered to appellant on a separate sheet, which is lost or destroyed. This sheet showed the items contained in the account stated to appellant. The letters were not complete themselves, and parol testimony was admissible to explain them and show what items were included in the account stated.

The judgment of the lower court is affirmed.

William J. Mills, C. J., Frank W. Parker, A. J., John R. McFie, A. J., AATm. H. Pope, A. J., concur.