Conway Savings Bank v. Dow , 69 N.H. 228 ( 1897 )

The motion for a nonsuit, on the ground that the action was prematurely brought, was rightly denied.

The note was on demand (Grafton Bank v. Woodward, 5 N.H. 99, 104; Crosby v. Wyatt, 10 N.H. 318, 323; Shaw v. Shaw, 43 N.H. 170, 171); by its terms the plaintiffs were empowered to collect it in whole or in part at their discretion; and no binding agreement extending the time of its payment beyond the date of the writ is found or appears. Bailey v. Adams,10 N.H. 162, 164; Fowler v. Brooks, 13 N.H. 240, 246, 247; Hoyt v. French,24 N.H. 198, 203.

As against the sureties, the cause of action was long since barred. "Actions of trespass to the person and actions for defamatory words may be brought within two years, and all other personal actions within six years, after the cause of action accrued, and not afterward." P.S., c. 217, s. 3. The plaintiffs' reliance upon the agreement embodied in the note to relieve it from the operation of the statute is without legal support. In the language of an analogous case: "That agreement could not have been intended for an indefinite extension of the time of payment, nor for a series of extensions from time to time, indefinitely, so that the creditors and principal makers could, at their pleasure, always keep the surety liable, and forever prevent his enforcing payment against the principal, or using the statute of limitations as a defence. Such a construction of the agreement in the note with such consequences cannot be adopted without a clearly expressed intention to that effect in the agreement itself" (Bank v. Chick, 64 N.H. 410, 411); and we are clearly of opinion that no such intention appears therein.

In its absence, upon the construction most favorable to the plaintiffs, the agreement must be taken and construed to have been entered into by the sureties in view of and subject to the statutory limitation of actions of this kind; and as the sureties have made no promise to pay the note, or, so far as appears, otherwise acknowledged their liability and willingness to pay it, within six years next before the commencement of the plaintiffs' action, they are in no wise estopped by the agreement, or by the reported facts, to make the defence set up in their plea and brief statement. Holt v. Gage, 60 N.H. 536, 541, 542; Gage v. Dudley,64 N.H. 271; Lang v. Gage, 65 N.H. 173, 175.

Exception overruled: judgment for the sureties.

CLARK, J., did not sit: the others concurred.