Wellman v. Southard , 30 Me. 425 ( 1849 )

Tenney, J.

— By the terms of the note, more than six years intervened between the time, when the makers were liable to pay, and the commencement of this suit. Consequently the statute of limitations will apply unless the case is taken out of its operation by other proof than that afforded by the note itself.

One ground relied upon by the plaintiff at the trial, was, that by the residence of Southard beyond the limits of the State, the running of the statute was suspended for such a length of time, that his residence in the State after the note was given and before the suit, was less than six years. Rev. Stat. chap. 146, sect. 28. Under instructions which were unobjectionable, the jury found otherwise.

The plaintiff relied upon the renewal of the promise, which he contends was effectual, by part payment of the note by Emerson, one of the makers, on November 10, 1843, and an acknowledgment signed by him at the same time, that the note was “justly due from him and Southard.” Although the makers of the note may have been partners in the business, wherein the plaintiff performed the service, for which the note was given, the note was not given by the firm, but by the individual members thereof in their private capacity, and as such they are sued in this action. The partial payment and acknowledgment of indebtedness therefore, cannot have the effect that it might have had, if it was a debt of the firm. Neither the payment nor the acknowledgment made by Emerson, can prevent the effect of the statute in favor of Southard, as is expressly provided in Rev. Stat. chap. 146, sections 20 and 24. The note is not excluded from the operation of these provisions, by being made before they were enacted. By the fair interpretation of the statute, it was designed to affect contracts then in existence, equally with those, which might be subsequently made. This modification has reference to the remedy and not to the right, and is free from objection.

It is insisted that the facts stated by Newhall in his deposition are sufficient for the maintenance of the action, on the count for money had and received, notwithstanding the reliance in defence, upon the statute of limitations.

If a sum of money is deposited by a debtor with a party, who has no title thereto, for the purpose of being passed to the creditor, and it is not paid according to direction, after demand by the creditor, he may maintain a suit therefor. But the facts stated by Newhall, are unlike those supposed. The makers of the note are Southard and Emerson. Newhall took the place of Emerson in the business, the liabilities, and benefits of the firm. The expression by Newhall,'in 1842, of a willingness to pay Emerson’s portion of this debt, when informed by Southard, that it was due from him and Emerson, and afterwards giving Southard the power to collect the debts due the firm, and the receipt by Southard of a large amount of those debts, could not be a new promise such as is required by the statute to have been made by Southard to prevent the effect of the statute ; and was not such a transaction as would enable the plaintiff to commence a suit thereon. It was an arrangement between Southard and Newhall, which could in no manner modify or affect the liability of the makers of the note.

The schedule of outstanding indebtedness made by Southard, in which was embraced this note, was not signed by Southard, and if it had been, was not such as the plaintiff could appropriate to himself, in order to avoid the statute.

The instructions given by the Judge were not legally erroneous ; and the instructions requested in behalf of the plaintiff and not given, were properly withheld.

Exceptions overruled.