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SEC. 286. Grounds upon which Doctrine of Whitcomb v. Whiting is predicated. The ground upon which the doctrine of Whitcomb
of decision upon the statute of limitations has undergone a great change in this country, and particularly in this State. At the former period, the statute amounted to little more, in judicial construction, than a ground for presuming the debt paid, which might be rebutted by the mere admission that such was not the fact. But the law is not so now. There must be a promise, a new contract, though founded on the original consideration, to take a ease out of the statute. If the promise is not express, the case must be such that it ean be fairly implied. There must, at the least, be a plain admission that the debt is due, and that the party is willing to pay it. Allen v. Webster, 15 Wend. (N. Y.) 284; Stafford v. Richardson, id. 302; Bell v. Morrison, 1 Pet. (U. S.) 362. It is the new promise and not the mere acknowledgment that revives the debt and takes it out of the statute. Rosevelt v. Mark, 6 Johns. (N. Y.) Ch. 290. This doctrine is sustained by many decisions in other States; but I do not think it necessary to cite them.
"The case of Whitcomb v. Whiting has, to a limited extent, been followed in Massachusetts: Cady v. Shepherd, 11 Pick. Mass. 400; Bridge v. Gray, 14 id. 55; Sig ourney v. Drury, id. 387, 391, 392; Vinal v. Burrill, 16 id. 401. In Connecticut: Bond v. Lathrop, 4 Conn. 336; Coit v. Tracy, 8 id. 268; Austin v. Bostwick, 9 id. 496; Clark v. Sigourney, 17 id. 511. In Maine Parker v. Merrill, 6 Me. 41; Pike v. Warren, 15 id. 390; Dinsmore v. Dinsmore, 21 id. 433; Shepley v. Waterhouse, 22 id. 497. And in Vermont: Joslyn v. Smith, 13 Vt. 353; Wheelock v. Doolittle, 18 id. 440. But I think the judgment under review would not be upheld in either of those States. In North Carolina it has been held that the acknowledgment of the debt by one partner, though after the dissolution, will prevent the operation of the statute. McIntire v. Oliver, 2 Hawks (N. C.), 209. And the same has been decided in Georgia, provided the new promise is made before the action is barred; but not when the new promise is made afterwards, as it was in
the case before us. Brewster v. Hardeman, Dudley (Ga.), 138. It has been decided by the Court of Appeals, in South Carolina, that a promise by one partner made after the dissolution, and after the statute had run, will not charge the other partner. Steele v. Jennings, 1 McMull. (S. C.) 297. In the Exeter Bank v. Sullivan, 6 N. H. 124, the authority of Whitcomb v. Whiting was wholly denied; and the court held that a payment by one of the joint makers of a promissory note did not take the case out of the statute as to the other. In Alabama, a promise by the principal debtor will not revive the demand against a co-debtor, who is a surety. Lowther v. Chappel, 8 Ala. 353. In Tennessee, a promise by one partner, after the dissolution of the partnership, to pay a note made by the firm, does not take the case out of the statute of limitations as to the other partner. Beloit v. Wynne, 7 Yerg. (Tenn.) 534; Muse v. Donelson, 2 Humph. (Tenn.) 166. This is also the rule in Pennsylvania. Levy v. Cadet, 17 S. & R. (Penn.) 126; Searight v. Craighead, 1 P. & W. (Penn.) 135. It is also held in Indiana that the power of one partner to bind the other by the admission of a debt ceases with the partnership. Yandes v. Lefavour, 2 Blackf. (Ind.) 371. And in Bell v. Morrison, 1 Pet. (U. S.) 351, the Supreme Court of the United States followed the decisions in Kentucky, and held that the dissolution of the partnership put an end to the authority of the partners to bind each other by any new engagement; and consequently that the acknowledgment of a debt by one partner, after the dissolution, would not take the case out of the statute of limitations. The elaborate argument of Mr. JUSTICE STORY, who delivered the opinion of the court, covers the whole field of discussion, and stands on principles which, though they may be disregarded, cannot be overthrown.
"I have not stopped to inquire whether the statute operates upon the debt or the remedy; for, though this might be a point to be considered in a court of conscience, it is of no practical importance in a court of law. We are not dealing with moral,
v. Whiting was predicated is, that in the case of co-contractors each is, with reference to the joint debt, the agent of the others. "Payment by one," said LORD MANSFIELD, "is payment for all, the one acting virtually as the agent of the rest; and in the same manner an admission by one is an admission by all; and the law raises the promise to pay when the debt is admitted to be due." However this might be in the case of partners, it is difficult to understand upon what ground, in the case of co-sureties and other species of joint indebtedness, one can be said to be an agent for the others, as to that transaction, or upon what ground an implied agency can be raised.1 "There is nothing in the relation of joint debtors," said BRONSON, J., in the case last cited," from which such an agency can be inferred. A joint obligation is the only tie which links them together; and from the nature of the case, payment of the debt is the only thing which one has authority to do for all." And it is now held in New York that one joint debtor cannot by a payment made by him upon the joint debt, before the statute has run upon the debt, as to them, suspend the operation of the statute,2 and much less after the statute has run,3 unless such payment was made by one of the joint debtors, by the direction of the other, so that a direct agency is established as to such payment.1 but with legal obligations; and it is idle to talk of a debt where there is no legal obligation to pay it."
1 See opinion of BRONSON, J., in Van Keuren v. Parmalee, 2 N. Y. 523. A. as principal and B. as surety made a joint and several promissory note payable to C., on which A. made two payments, the first within four years, the period of limitation, after maturity, and the second within four years after the first payment, but more than four years after maturity. Held, that an action against B., commenced within four years after the second payment but more than four years after the first payment, was barred by the statute of limitations. Smith v. Caldwell, 15 Rich. (S. C.) L. 365. In an action against a principal and surety upon a joint and several promissory note, where the defendants severally pleaded the statute of limitations, held, that payments of the interest, made regularly by the principal, operated as a new promise, as well against the surety as against the principal, where their joint responsibility had not been severed previous to such payments. Zent v. Hart, 8 Penn. St. 337. The payment of interest by the principal promisor in a joint and several promissory note, annually from the time when the note was given,
was held, before the Revised Statutes of Massachusetts were passed, sufficient to take the note out of the statute of limitations, as against the surety. Sigourney v. Drury, 14 Pick. (Mass.) 387. The indorser of a note due in 1841 made a part payment in 1843, and in 1845 he promised to pay what should be found due on the note after a settlement which the holder could make. To an action on the note in 1848 he pleaded the statute of limitations. Held, that the statute was not a bar, and as the jury had found for the defendant, that their verdict was to be set aside. Rucker v. Frazier, 4 Strobh. (S. C.) 93. A. and B. gave their joint and several promissory note, secured by a mortgage executed by B. only. In an action to foreclose the mortgage, commenced more than six years after the maturity of the note, it was shown that A. had, within six years, made a payment on the note, and it was held that the liability of B. was not affected thereby. Cleaveland v. Harrison, 15 Wis. 670.
2 Shoemaker v. Benedict, 12 N. Y. 176; Dunham v. Dodge, 10 Barb. (N. Y.) 566.
8 Payne v. Slate, 39 Barb. (N. Y.) 634. Haight v. Avery, 16 Hun (N. Y.),
SEC. 287. Present Doctrine in this Country. — Except in the four States already referred to, the doctrine in reference to joint debtors — except partners may be said to be, that one co-debtor can neither suspend nor remove the statute by an admission of, or promise to pay, the joint debt, nor by a partial payment thereof, out of his own funds, without the direction, assent, or subsequent ratification of his codebtors.1 In reference to partners more conflict exists, and inasmuch as, without question, while the partnership exists each partner is agent
1 Exeter Bank v. Sullivan, 6 N. H. 124; Bell v. Morrison, 1 Pet. (U. S.) 362; Whipple v. Stevens, 22 N. H. 219; Levy v. Cadet, 17 S. & R. (Penn.) 126; Van Keuren v. Parmalee, ante. In United States v. Wilder, 13 Wall. (U. S.) 254, it was held that when a debtor admits a certain sum to be due by him, and denies that a larger sum claimed is due, a payment of the exact amount admitted cannot be converted by the creditor into a payment on account of the larger sum denied, so as to take the claim for such larger sum out of the statute. In Exeter Bank v. Sullivan, 6 N. H. 124, a like view of the law as that in Bell v. Morrison, 1 Pet. (U. S.) 362, was announced by the Supreme Court of New Hampshire. In that case it was said: "If one joint debtor admits that he owes the debt, and says nothing to the contrary, it may be inferred from his silence that he is willing to pay; but his silence can furnish no ground to presume that another who is absent is willing to pay." This was followed, in the same State, by Kelly v. Sanborn, 9 N. H. 46, and Whipple v. Stevens, 22 N. H. 219. The Supreme Court of Pennsylvania, in Levy v. Cadet, 17 S. & R. (Penn.) 126, held that payment on account, or an acknowledgment, by one of two or more joint debtors, will not take the case out of the statute as to the others, and this has been followed, in the same State, by Coleman v. Forbes, 22 Penn. St. 156; Searight v. Craighead, 1 Penn. 135; Houser v. Irvine, 3 W. & S. (Penn.) 345; Shoneman v. Fegley, 7 Penn. St. 433; and Bush v. Stowell, 71 Penn. St. 208. The Supreme Court of Indiana, in Yandes v. Lefavour, 2 Blackf. (Ind.) 371, held that an acknowledgment of a debt made by one partner, after the dissolution of the partnership, is not sufficient to take a case out of the statute of limitations as to the others. The Supreme Court of Alabama,
in Lowther v. Chappell, 8 Ala. 353, held, under this section, "a payment by one of several joint debtors, before the statute has completed a bar, will not prevent the completion of the bar as to the others, at the expiration of the time within which the statute required suit to be brought on the original evidence of debt, relied on to sustain the action." This was followed in the same court by Myatts v. Bell, 41 Ala. 222; Knight v. Clements, 45 id. 89. In Beloit v. Wayne, 7 Yerg. (Tenn.) 534, decided at the March term, 1835, the Supreme Court of Tennessee followed the doctrine of Bell v. Morrison, and this has since been followed by Muse v. Donelson, 2 Humph. (Tenn.) 166. In Palmer v. Dodge, 4 Ohio St. 21, the same result was reached by the Supreme Court of Ohio. More recently, in Kansas, Nebraska, and Florida, the doctrine of Whitcomb v. Whiting is repudiated, and that of Bell v. Morrison followed. Steele v. Souder, 20 Kan. 39; Mayberry v. Willoughby, 5 Neb. 368; Tate v. Clements, 16 Fla. 339. Like reasoning will also be found in Setette v. Jennings, 1 McMull. (S. C.) 297; Foute v. Bacon, 24 Miss. 156; Briscoe v. Auketell, 28 id. 361. The earlier decisions in New York followed Whitcomb v. Whiting. See Johnson v. Beardslee, 15 Johns. (N. Y.) 3; Patterson v. Choate, 7 Wend. (N. Y.) 441. But in 1849 the Court of Appeals of that State, in Van Keuren v. Parmalee, 2 N. Y. 523, overruled these cases after an able review of the authorities, and held that the presumed agency of a partner ceases with the dissolution of the firm, and that after dissolution an acknowledgment or promise to pay by one of the partners will not revive a debt against the firm which is barred by the statute of limitations. Shoemaker v. Benedict, 11 N. Y. 176; Winchell v. Smith, 18 N. Y. 558; Kallenbach v. Dickinson, 100 Ill. 427.
for the others, it is held in all the States that, while the partnership exists, one partner can bind the others by an admission or part payment where it is made according to the requirements of the statute, and in the name and on behalf of the firm; and where the admission or payment is made in reference to a partnership transaction, it is treated as having been made on behalf of the firm. But as, when the partnership is dissolved, the agency of each partner to act for the firm is generally treated as having been revoked, it is held in most of the States that an admission or payment made after such dissolution does not have the effect to revive the debt against the firm; while in others it is held that
1 Van Keuren v. Parmalee, ante; Tate v. Clements, 16 Fla. 339; Yandes v. Lefavour, 2 Blackf. (Ind.) 371; Palmer v. Dodge, 4 Ohio St. 21; Foute v. Bacon, 24 Miss. 156; Briscoe v. Auketelle, 28 id. 361; Whipple v. Stevens, 22 N. H. 219; Bush v. Stowell, 71 Penn. St. 208; Shoneman v. Felgley, 7 Penn. St. 433; Knights v. Clement, 45 Ala. 89; Kallenbach v. Dickinson, 100 Ill. 427.
In the case of Bell v. Morrison, 1 Pet. (U. S.) 351, Mr. JUSTICE STORY, delivering the opinion of the court, says: "The reasoning of LORD MANSFIELD assumes that one party who has the authority to discharge has, necessarily, also authority to charge the others; that a virtual agency exists in each joint debtor to pay for the whole, and that a virtual agency exists by analogy to charge the whole. Now, this very position constitutes the matter in controversy. It is true that a payment by one does inure for the benefit of the whole; but this arises not so much from a virtual agency for the whole as by operation of law, for the payment extinguishes the debt. . . . If the principle of LORD MANSFIELD be correct, the acknowledgment of one joint debtor will bind all the rest, even though they should have utterly denied the debt at the time such acknowledgment was made. . . . By the general law of partnership, the act of each partner during the continuance of the partnership, and within the scope of its object, binds all the others. It is considered the act of each and of all, resulting from a general and mutual delegation of authority. Each partner may, therefore, bind the partnership by his contracts in the partnership business, but he cannot bind it by any contracts beyond those limits. A dissolution puts an end
to the authority. By the force of its terms it operates as a revocation of all power to create new contracts, and the right of partners as such can extend no further than to settle the partnership concerns already existing, and to distribute the remaining funds."
Referring to the case of Wood v. Braddick, 1 Taunt. 104, JUSTICE STORY, in the same opinion, says: "The doctrine in 1 Taunt. stands upon a clear, if it be a legal, ground; that as to things past the partnership continues, and must always continue, notwithstanding the dissolution. That, however, is a matter which we are not prepared to admit, and constitutes the very ground now in controversy. The light in which we are disposed to consider this question is, that after a dissolution of a partnership no partner can create a cause of action against the other partners, except by a new authority communicated to him for that purpose. It is wholly immaterial what is the consideration which is to raise such cause of action, whether it be a supposed pre-existing debt of the partnership or any auxiliary consideration which might prove beneficial to them. Unless adopted by them, they are not bound by it."
The case in which these observations occur was one in which the statute of limitations had run before the promise or admission by one of the partners was made. See also 3 Kent's Com., Lecture 48.
The Supreme Court of New York, KENT, C. J., in Hackley v. Patrick, 3 Johns. (N. Y.) 536, held that, "after a dissolution of a copartnership, the power of one partner to bind the other wholly ceases. There is no reason why his acknowledgment of an account should bind his copartners, any more than his giving a
such admissions or part payments made after the dissolution, but before
promissory note in the name of the firm or any other act." The statute of limitations did not enter into that case, the sole question being as to the power of one partner, who was authorized to adjust the debts due from the copartnership, to bind the others by his admission after the dissolution.
SPENCER, J., in Walden v. Sherburne, 15 Johns. (N. Y.) 424, referring to the case of Hackley v. Patrick, says: "It seems that the Court of Common Pleas in England have held otherwise (1 Taunt.), but I believe there is more safety in the rule of this court than in a contrary one." The same rule was applied in Baker v. Stackpole, 9 Cow. (N. Y.) 420, and it was held that the admission of one partner, either of an account or any fact, made after the dissolution of the partnership, is not admissible as evidence to affect any other member of the firm.
In the New York Court of Appeals, Van Keuren v. Parmalee, 2 N. Y. 523, in a case where a promise was made by one partner nine years after the partnership was dissolved, and four years after the statute of limitations had fully run, to pay a note of the firm, BRONSON, J., delivering the opinion of the court, says: "In reference to the statute of limitations, a distinction has sometimes been taken between a promise made before the statute has run and one made after the parties have been exonerated by the lapse of time. That would sustain the defence in this case; for the statute had run upon the claim long before the new promise was made. But the defence may be rested upon the still broader ground that the dissolution of the partnership was a revocation of the agency, and the power of the partners to bind each other by new engagements ceased from that moment." The opinion in that case contains an extensive notice of the cases involving the question, and remarks that the "statute of 21 James I. ch. 16, which limited actions on promises to six years, was not very well received by the legal profession, and although the early decisions under it are not open to much observation, it was not long before the courts began to regard the statute with disfavor, and to resort to the most subtle construc
tions for the purpose of restricting its influence. There was a period when one who was spoken to on the subject of an old debt could not well give a civil answer without saying enough to take the case out of the statute. At a later period, and since the commencement of the present century, the courts began to regard this as a beneficial statute, a statute of repose, and commenced the difficult task of retracing their steps." Noticing the brief reasons for the decision in Whitcomb v. Whiting, ante, the court says: "Nothing but the great name of LORD MANSFIELD could have given currency to this reasoning. It is plain enough that 'payment by one is payment for all,' so far as relates to the satisfaction of the debt, but that fact neither shows, nor has any tendency to show, a new promise or acknowledgment by the other joint debtors. Payment is nothing more than an admission that the debt is due, and, like any other admission, it can only affect the party who makes it, unless he has authority to speak for others as well as himself. A joint debtor has no such authority. If the meaning be that there is such an agency as will make the payment by one inure to the benefit of all the joint debtors, the reasoning is well enough, but it proves nothing on the point in controversy. If the meaning be that one joint debtor is the agent of the others for the purpose of making admissions to bind them, that was assuming the very point to be proved, and the assumption had neither authority nor argument to support it. There is nothing in the relation of joint debtors from which such an agency can be inferred. A joint obligation is the only tie that links them together, and from the nature of the case payment of the debt is the only thing which one has authority to do for all. I am persuaded that such a decision would not have been made had it not been for the strong disposition which prevailed at the time to get around the statute of limitations."
The decision in Whitcomb v. Whiting, ante, is said to have been in direct conflict with Bland v. Haselrig, 2 Vent. 151, which was decided ninety years before,