Macrum v. Marshall

Opinion,

Mb. Justice Williams :

The controversy in this case lies within very narrow limits. Stephen Woods was the maker of a promissory note for $1,500, dated September 8, 1875, and payable to Robert Woods at the Allegheny Savings Bank. It was indorsed by the payee, and by Thomas M. Marshall, the plaintiff in error. At the maturity of the note on November 10,1875, the maker was unable to provide funds for its payment, and the indorsers made a written waiver of protest. An action was brought against the maker, and a judgment obtained for the amount of the note and interest, at the suit of the savings bank, but no action was brought against the indorsers. Nothing appears to have been collected on the judgment against Stephen Woods, but some one offered the bank $500 for it. Before accepting the offer, the bank applied, to Mr. Marshall for his consent to the proposed sale, which he gave in writing, as follows: “I agree to sale of the judgment on this note against S. Woods for five hundred dollars, and agree to ratify same for M. Hay, trustee. Pittsburgh, May 6,1880. [Signed] Thos. M. Marshall.” Nothing more was done, so far as Mr. Marshall was concerned, until May 5, 1886, six years, less one day, after the written consent to the sale of the judgment had been given, and more than ten years after the maturity of the note and the waiver of protest. At that time it appears that Mr. Marshall was asked to waive the statute of limitations on his indorsement. This he declined to do, but he renewed his agreement of May 6, 1880, by a writing indorsed upon the same paper, in these words: “ I renew the agreement of May 6, 1880, as of this date, and I waive any statute plea thereon. Pittsburgh, May 5, 1886.”

The court below held this to be a waiver of the statute upon his liability as an indorser upon the note of Stephen Woods, and the correctness of this holding is the question in this case. The note matured on November 10, 1875. This suit was brought on May 6, 1886. The statute of limitations is an answer, prima facie, to the plaintiff’s demand, and the burden is on the plaintiff to show that the bar of the statute has been tolled. The only evidence for this purpose is the agreement of May 6, 1880, renewed on May 5, 1886; and, unless this shows a clear and distinct admission or recognition of the liability of Mr. Marshall for this debt, the plaintiff must fail. For what purpose was the agreement of May 6,1880, asked by the bank, and given by the indorser ? The bank held a judgment for the amount of the note and interest against Stephen Woods, the maker. The use of legal process had realized nothing upon it. The bank was offered $500 for an unconditional sale of it, and was evidently inclined to accept the offer, if this could be done safely. The danger was that the indorser might insist that a sale of the judgment for less than its face was improvident and unnecessary, and treat it as a distinct ground of defence, if called upon to pay the balance. To settle this question, Mr. Marshall was asked to consent to the sale, which he did. By so doing he said in effect to the bank, “ If you attempt to compel payment of the note by me, whatever other 'defences I may set up, I will not allege that you have sold this judgment for less than it was worth.” The agreement is not inconsistent with any other line of defence than the specific one which was in the mind of both parties, and which is clearly referred to in the writing. Mr. Marshall might, with entire fairness, deny his indorsement, allege payment by him, or set up the statute of limitations, and yet be willing that the bank should realize whatever it could from its own judgment against Woods by a sale of it for the best price offered. ■ The bank exercised a proper caution in asking the consent of the indorser to the sale. The indorser, if satisfied that the sale was a proper one, acted with fairness in giving his assent to it. This was the only purpose for which the agreement was asked for by the bank or its representative. It is the -only subject to which it relates, and it is the only line of defence on which it closes the mouth of him who signed it.

Coming down, now, to the agreement of May 5, 1886, we find it to be a renewal of that of May 6, 1880, and nothing more. Short as it is, it is tautological, and fully one half of it is unnecessary. It runs thus : “ I renew the agreement of May 6, 1880, as of this date, and waive any statute plea thereon.” The word. “ thereon ” must refer to the agreement of May 6, 1880; but the sentence of which it is part is superfluous. The operative words of the agreement are these : “ I renew the agreement of May 6, 1880.” The words “ as of this date ” express the legal effect of the words preceding them, and neither add to nor take from that effect; they are wholly unnecessarjn The same may be said of the remaining words, “ and I waive any statute plea thereon.” This had been already done by the agreement to renew, as effectually as it was possible to do by any form of words whatever. The original agreement gave consent to the sale of the judgment for much less than its face. The agreement of May 5, 1886, renewed that consent. If there was danger that Mr. Marshall might be relieved from that consent by lapse of time, its renewal in express words removed that danger, and expressed his willingness to remain bound by it. Further than this the agreement was never intended or understood to go when originally made, and it is not probable that the renewal agreement would have received any other construction but for the unnecessary and meaningless words it contains.

The cases cited and relied on by the defendant in error are not in point. In Finkbone’s App., 86 Pa. 368, Wiley had given a receipt for money to be returned to Mary Finkbone, “in such amounts as she may want.” He received another sum to be held in the same manner, and Avrote the receipt therefor on the same piece of paper, and directly under the first, and then re-delivered the paper to her. This was properly held to be an admission of the amount shown to be due on the face of the paper at the date of such last receipt and delivery. In Wesner v. Stein, 97 Pa. 322, the rule is clearly stated that an acknowledgment, to take a case out from the operation of the statute, must be clear and unambiguous. It must recognize, and be directed to, the debt with sufficient clearness, and must amount to an unqualified admission that it remains due and unpaid. The words relied on in this case do not meet the test. They refer clearly to another subject, — the sale of the Woods judgment. If Mr. Marshall was now objecting to that sale, his agreement that it might be made ought to conclude him; but, as he is defending upon wholly different ground, we do not see that he is affected by it in any manner.

Judgment reversed, and judgment is now entered in favoi of the defendant on the question reserved. An opinion was filed in this case soon after it was heard, which we are informed by the prothonotary cannot be found. This opinion is now filed for that reason.