CHAPTER XXIII. ACKNOWLEDGMENT BY ONE OF SEVERAL CO-CONTRACTORS. § 248. As a general rule, it is well settled, that, if several persons, whether regular copartners in trade or not, be jointly indebted, the unambiguous and unqualified acknowledgment of one of them, owing to the community of interest and design between them, and the consequent implied authority which one has to bind his co-contractor or co-contractors, will avoid the bar of the statute as to all. The doctrine is stated by Lord Ellenborough to have had its origin with the case of Whitcomb v. Whiting,1 decided in the King's Bench in 1781.2 1 Whitcomb v. Whiting, 2 Doug. R. 652. 2 Much of the argument, says Emery, J., in giving the opinion of the court, in Pike v. Warren, in Maine (3 Shep. Me. R. 399), in behalf of the defendant, has been devoted to assailing the decision of Whitcomb v. Whiting; and a similar attack, he said, was made upon the law of this case in Atkins v. Tredgold (2 Barnw. & Cress. R. 23); and he adds, that it is a little curious, that, in Perham v. Raynal (2 Bing. R. 306, as reported in 9 Eng. Com. Law R. 413), the authority of Whitcomb v. Whiting is reinstated, and held to contain sound doctrine, so far that an acknowledgment within six years, by one of two makers of a joint and several note, revives the debt against both, though the other had signed the note as surety. In Perham v. Raynal, referred to by the learned judge, it appears that Chief Justice Best says, that two of the judges, in Atkins v. Tredgold, have thrown out dicta impugning the authority of Whitcomb v. Whiting; but the expressions are only dicta, and the two other judges abstain from saying any thing to the same effect. He also says, that it is important to look to what Abbott, Ch. J., told the jury, namely: "If they thought that the payments made by Robert Tredgold were made by him in his character of executor, they should find for the plaintiffs on those counts. If, however, they thought the payments made by him on his own account, as the joint maker of the notes, then they were to find for the defendants." So that, at that time, says Chief Justice Best, he (Abbott, Ch. J.), thought the doctrine in Whitcomb v. Whiting correct, because he charged the jury in conformity therewith. Best, Ch. J., then states, that Lord Ellenborough and Bayley, J., express approbation, and admit the authority, of Whitcomb v. Whiting, in Brandram v. Wharton (1 Barn. & Ald. R. 458). It seems, therefore, he continues, that the decision in Whitcomb v. Whiting rests on the same principle as decisions with respect to admissions by one of several persons concerned in other instances; that we should create an anomaly by departing from it; and that it has been confirmed in many cases, and not shaken by any authority. In reply to doubts expressed as to the authority of Whit In that case, there was a partial payment made by one of several promisors on a joint and several promissory note, executed by the defendant and three others; and the proof of such payment, it was held, took the case out of the statute, as regarded the defendant. Baron Hotham considering it sufficient to take the case out of the statute, and so was binding upon the defendant, a verdict was found for the plaintiff. Upon motion for a new trial, Lord Mansfield said: "Payment by one is payment for all, the one acting virtually as agent for the rest; and, in the same manner, an admission by one is an ad comb v. Whiting, by Shaw, Ch. J., in Sigourney v. Drury, in the Supreme Court of Massachusetts (14 Pick. R. 387), Whitman, Ch. J., in giving the opinion of the Supreme Court, in Maine, in Dinsmore v. Dinsmore, 8 Shep. (Me.), R. 438, says: "His doubts would seem to have been suggested by what fell from Mr. Justice Bayley, in Atkins v. Tredgold, 2 Barn. & Cress. R. 23. That cause, however, was not decided on any such ground; and the language of the learned judge was an obiter dictum. The question there was, whether a payment of interest, by a surviving co-promisor, revived a debt against the executors of the deceased promisors; and it was held, that it did not, as the death of one rendered the contract several against the survivor." [But see post, § 260, note.] In a number of instances, it has been asserted that Whitcomb v. Whiting was contrary to the authority of Bland v. Haselrig (2 Ventris, R. 152). In White v. Hale, in Massachusetts (3 Pick. R. 293), Chief Justice Parker, in giving the opinion of the court, said, that the case in Ventris was against four, all of whom pleaded the statute, and the jury found that, where one promised within six years, there can be no judgment against him. This is because the verdict does not pursue the issue. The fault was in not considering the promise of one binding upon all. This is explained in a note to the case cited from Douglas (Whitcomb v. Whiting). Chief Justice Best, in Perham v. Raynall (2 Bing. R. 306, supra), says, Bland v. Haselrig ought not to have weight, for one of the judges differed, and other circumstances show it to be a case of no authority. As is well observed, he says of this case, by Lord Glenbervie, who is now authority, in a note to his own report of Whitcomb v. Whiting, it "may be explained on the manner of the finding; for, as the plea was joint, and the replication must have alleged a joint undertaking, the verdict did not find what the plaintiff had bound himself to prove." Pollexfen, Ch. J., and Powell and Rokeby, Js., were of opinion that the plaintiff could not have judgment. Ventris inclined to the contrary. He considered it as a promise, which the case in Carthew shows it was not. But the Chief Justice seemed of opinion, "if the promise were renewed within six years, yet, if not upon a new consideration, the action will lie against him, that he promised alone." "Sed quære, for the common practice is, upon the plea of the statute of limitations, to prove only a renewing of the promise, without any further consideration; but the barely owning the debt is not sufficient." That case, says Best, Ch. J., cannot be considered law at present; and, with deference to Pollexfen, a moral obligation to pay the debt was a sufficient consideration for the promise. The decision, therefore, was erroneous, except that the verdict found precluded any other judgment. But Judge Story thinks it very doubtful, upon a critical examination of the report, whether the opinion of the court, or of any of the judges, proceeded solely upon such a ground. Story on Partnership, 463 (note). mission by all; and the law raises a promise to pay when the debt is admitted to be due." In a modern case, in England, the law is thus laid down by Lord Chief Justice Tenterden: "I am of opinion that a part payment by one is an admission by both that the note is unsatisfied, and that it operates as a promise by both to pay according to the nature of the instrument." Holroyd, J., in the same case, referring to the part payment on the note in question, considered that it was made by B, as the agent, and by the authority, of the other joint and several promisors, and was therefore an admission, by the latter, that the sum remaining due on the note was an existing debt, and it operated as a fresh promise by him to pay the same. In this country, the proposition is broadly stated judicially: "It is very clear, that, if several persons, whether in partnership or not, are jointly indebted, the explicit acknowledgment of one of them, who is still liable himself, of the existing indebtedness, or a new promise by him, will take the case out of the statute as to all."2 Lord Chancellor Brougham recognized, in the most explicit manner, the authority of Whitcomb v. Whiting, in Pritchard v. Draper,3 and, in reference to it, asserted: "Before Lord Tenterden's act, if two persons made a joint promissory note, and six years ran before an action was brought, an acknowledgment of liability by one of those persons was sufficient to take the case out of the statute of limitations, although made respecting a fact which took place long after the connection of the parties had ceased." And so firmly settled, he said, was the law on this point, that, to alter it, an express clause had been inserted in Lord Tenterden's act. Independent of the enactment in Massachusetts (that, if there be two or more joint contractors, no one of them shall lose the benefit of the limitation act, so as to be chargeable by 1 Burleigh, Ex'r, v. Stott, 8 Barn. & Cress. R. 36. See also, other English cases: Clarke v. Hooper, 10 Bing. R. 480; Pease v. Hirst, 10 Barn. & Cress. R. 122; Manderston v. Robertson, 4 Man. & Ryl. R. 410; Channel v. Ditchburn, 5 Mees. & Welsb. (Ex.), R. 494. 2 Mellen, Ch. J., in delivering the opinion of the court, in Getchell v. Head, 7 Greenl. (Me.), R. 26. See also, Clementson v. Williams, 8 Cranch (U. S.), R. 72; Pike v. Warren, 3 Shep. (Me.), R. 390; Dinsmore v. Dinsmore, 8 id. 433; Smith v. Ludlow, 6 Johns. (N. Y.), R. 267; Johnson v. Beardsley, 15 id. 3; Beitz v. Fuller, 1 M'Cord (S. C.), R. 541; Sigourney v. Drury, 14 Pick. (Mass.), R. 387; White v. Hale, 3 id. 291; Sigourney v. Wetherell, 6 Met. (Mass.), R. 533; Shelton v. Cocke, 3 Munf. (Va.), R. 191; Story on Part. 160. 8 Pritchard v. Draper, 1 Russ. & Mylne, Ch. R. 191. reason only of any payment made by any other of them), where a minor makes a payment on a joint note given by him and an adult, and, after he comes of age, makes an oral promise to pay the balance, he thereby so ratifies his former payment that it will take the note out of the statute, both as to himself and as to the adult.1 Chief Justice Shaw, it is true, in Sigourney v. Drury,2 in the course of his reasoning, has suggested that, if the admission were merely oral, or after the six years had elapsed, so that the statute had become a bar, it would deserve consideration whether it should be allowed to revive the promise against both, and seems to be inclined to think it would not; but reserves himself for the consideration of those questions when they shall require a decision.3 § 249. Whether the contract be joint, or joint and several, makes no difference, for there may be a joint debt, though there is a several promise by each to pay it. But it is as much necessary to show that the party making the promise, though he is not sued, nor his liability denied, is a co-contractor, as it would be if he were a party to the action. Though one of the promisors of a joint and several promissory note is designated as principal, and the others as sureties, the designation, in the words of Chief Justice Shaw, "is rather intended to indicate the relation in which the promisors stand to each other, than to affect their obligation to the promisee. It is intended to enable the surety to have his remedy over, if called on to pay and to protect him from a claim for contribution, if the payment is made by the principal." In an action of assumpsit upon a promissory note signed by J. E., one of the defendants, as principal, and S. W., the other 1 Pierce v. Toby, 5 Met. (Mass.), R. 168. 2 14 Pick. (Mass.), R. 387. And see opinion of Brooke, J., in Farmers Bank v. Clarke, 4 Leigh (Va.), R. 603. 3 From which Whitman, Ch. J., in Dinsmore v. Dinsmore, 8 Shep. (Me.), R. 438, expressly dissented. 4 Burleigh v. Stott, 8 Barn. & Cress. R. 36, and 15 Eng. Com. Law R. 151. When several persons are bound by a joint, or joint and several obligation, the unqualified release of one of the obligors will operate as a discharge to all of them. Bronson v. Fitzhugh, 1 Hill (N. Y.), R. 185; but where the obligors are bound only severally, the case does not come within the rule, and the release of one will not discharge the rest. Bank of Poughkeepsie v. Ibbotsom, id. 461. And see 2 Saund. R. 574; Bac. Abr. T. Release (G.), 7th Lond. ed. Wylde v. Porter, 1 Adol. & Ell. R. 742, and 20 Com. Law R. 196. defendant as surety, payable to the plaintiff's testator on demand with interest; the defence was, that as twenty years had elapsed, after the date of the note, before the commencement of the action, the legal presumption was, that it had been paid. A payment of fifty dollars the court held to be equivalent to an express acknowledgment of an existing debt, and that the principal and surety stood upon the same footing. The contract, the court said, being proved, the admission of one was the admission of both. But if there had been any proof of collusion between the creditor and the principal, to throw the debt on the surety, and to deprive him of his indemnity, without doubt he would be entitled to relief. Another ground of defence in behalf of the surety, was the long delay of the creditor to proceed against the principal, until the latter became insolvent. And it was argued, that the prolongation of credit had been the means of depriving the surety of his indemnity, and ought, therefore, to absolve him from liability. But the court considered the principle well settled, that the mere delay of the creditor to proceed against the principal, was not sufficient to discharge the surety; and that, in the cases cited by the defendant's counsel,2 it appeared, that the creditor was requested by the surety to proceed against the principal. Most of the English cases upon the subject were those of sureties. In Perham v. Raynal, an acknowledgment of one of two makers of a joint and several promissory note, was held sufficient to avoid the statute as against the other, although the other had made no acknowledgment within six years, and had signed the note only as surety.5 One N., having applied to D. for a loan of £300, a certain sum on mortgage, D., doubting the sufficiency of the security, refused to advance it without having, in addition, a joint and several promissory note for £50, from N. and one F., payable on demand. The note and mortgage were accordingly given, the latter containing a covenant by N. to pay the sum of £300, and interest, at 5 per cent. Several half-yearly payments of of £7 108. each, for interest, having been made by N.: It was held, 1 When cases of fraud appear, they will be determined by their own circumstances. Per Lord Mansfield, in Whitcomb v. Whiting, supra. 2 Pain v. Packard, 13 Johns. (N. Y.), R. 174; King v. Baldwin, 17 id. 390. 3 Hunt v. Bridgham, 2 Pick. (Mass.), R. 581. 4 Perham v. Raynal, 9 Moore, R. 566; and 3 Bing. R. 306; and 15 Eng. Com. Law R. 413. 5 See also, Evans's Pothier, 413. |