Howe v. Thompson

Parkis J.

delivered tbe opinion of the Court.

The first question presented by the report of this case is, whether Cram, the promisee and indorser, is a competent witness to prove the time when the last payment was made. He had parted with all his interest in the note, and, by his special in-dorsement, had shielded himself from all liability as indorser; so that whatever might be the result of this suit, he would be in no manner responsible. The case is not distinguishable from Rice v. Stearns, 3 Mass. 225, where the payee ordered the contents of the note to be paid to the indorsee, at his own rislc, and the Court held that the indorser had no interest in the event of the suit, and was a competent witness. See also Baskins v. Wilson, 6 Cowen, 471; Barretto v. Snowden, 5 Wend. 181.

Cram was unquestionably a competent witness.

The indorsement of part payment was made by the defendant himself, and, therefore, no question could arise as to its being, at that time, a sufficient acknowledgment of indebtedness to remove the presumption of previous payment. But the date of this indorsement was not entered by him, and consequently it became material to prove when that entry was made.

The indorsement on the back of the note forms no part of the original instrument, and the addition of the date to this indorsement, by Cram, can have no effect upon the legal validity of that instrument. It is no alteration of it, and can neither destroy its efficacy or give it force.

Cram testified as to the time when the payment was made, and he further testified that the defendant, at the same time, stated that the money ought to have been paid some time ago, and that he would pay the remainder, as soon as he could. Here was abundant evidence, not only of an unambiguous acknowledgment of the debt, as existing and due at that time, but of a promise to pay, either of which is sufficient to rebut the presumption of previous payment arising from lapse of time.

The next point relied upon is, that the admission or promise to Cram, will not take the note out of the statute of limitations in the hands of the plaintiff, as indorsee. It has been settled, that an unambiguous acknowledgment of the debt, as existing and due at the time of such acknowledgment, will take a demand out of the operation of the statute of limitations. Porter v. Hill, 4 Greenl. 41; and that it is not necesssary that such acknowledgment should be made to the plaintiff himself, but if made to a stranger, in the absence of the plaintiff, it will defeat the opera* tion of the statute. Whitney v. Bigelow, 4 Pick. 110; Soulden v. Van Rensselaer, 9 Wend. 293.

It is, therefore, unimportant whether the acknowledgment of indebtedness was made to Cram, or to tlie plaintiff. Proof of that acknowledgment removed the presumption of payment and obviated the bar, which the statute of limitations would otherwise have interposed to a recovery on the note. Such seems to have been the opinion of the Court, in Frye v. Barker, 4 Pick. 382, where the admisssion of indebtedness and promise to the payee were deemed sufficient to enable the indorsee to avoid the statute ; and in Dean v. Hewett, 5 Wend. 257, where the Court expressly decided, that an action may he maintained by the in-dorsee of a promissory note, where the statute of limitations has attached, on proof of a promise to the payee to pay the debt, within six years before the commencement of the suit.

We think all the points, ruled at the trial, are well sustained by authorities.