
    Charles C. Blair and ano., Resp't, v. Patrick Lynch, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    1- Limitations of actions—Payment.
    Plaintiffs were requested by defendant to purchase a certain mortgage, but the mortgagee refused to sell absolutely, and offered to pledge it as collateral security, and defendant being so informed told one of the plaintiffs to loan mortgagee $3,500, and get an absolute assignment if possible, and when the loan matured he (defendant) would take up the $8,500 and give him $100 commissions. Mortgagee knew nothing of this arrangement, and transferred the mortgage to plaintiffs. The notes on which the loan was made not being paid, plaintiffs obtained a judgment, and on supplementary proceedings collected $450 of the mortgagee. In this action they undertake to make defendant repay on the agreement referred to Held,, that as the statute of limitations was pleaded it barred the right of recovery unless the debt was revived by a payment, and the collection from the mortgagee was not such an act on the part of the defendant.
    2 Same.
    The other payment relied upon was that of $1,800, in exchange for which the plaintiffs executed and delivered to the defendant an assignment of one-lialf of the Slattery mortgage. Held, that the question whether the payment made in form upon the contract of purchase was also made and accepted upon the contract of agency within the intent of the parties was a question which should have gone to the jury, and that the refusal of a request by the defendant to send it to the jury was error
    Appeal from judgment of supreme court, general term, fourth department.
    
      This is an action by the plaintiffs, as copartners, to recover from defendant a balance claimed to be due upon a loan made to defendant July 19, 1873. Defendant sets up the statute of limitations. In July, 1873, one John O. S. Lynch, was the owner of a bond and mortgage of' $6,000, and he pledged it upon fine salt lot No. 36, of the Salt Springs reservation, to Wilkinson & Co., as collateral security for the payment of a loan of $2,000.
    The plaintiffs claim that about that time they were requested by defendant to purchase this mortgage from John O. S. Lynch, provided they could get it for $4,000, and that he would pay them $100 commission for making the purchase. Shortly thereafter Lynch applied to the plaintiffs for a loan of $3,500, with which he wished to pay the debt which he owed the Wilkinsons and others, and offered to give the plaintiffs an assignment of the mortgage as collateral security. The plaintiffs claim that they informed the defendant of this proposition, and he said that he would take it at $3,500, if plaintiffs could get it at that, and that he would give them a commission of $100. One -of the plaintiffs swears that he informed the defendant that Lynch would not assign the mortgage absolutely; that he thought he would redeem it; that defendant then told him to go on and make the loan, and get an absolut e assignment if he could, and that, at the expiration of the loan, when it matured, he would take up the $3,500, and give him $100 commission for the transaction. The loan was made, and the money paid to ■ John O. S. Lynch. An assignment of the mortgage was executed to the plaintiffs. The loan to John O. S. Lynch became due September 22, 1873, at which time the notes executed by him were protested for non-payment. Plaintiffs sued notes against John O. S. Lynch, and recovered judgment against him December 11, 1873. In their complaint they swear that they were holders and owners of the notes. executed by John O. S. Lynch. Upon this judgment, supplementary proceedings were instituted, and at different times moneys were collected thereon to the amount of about $450.
    Thereafter defendant and plaintiffs executed the follow ing agreement:
    “For and in consideration of the sum of $1,800, this day paid by Patrick Lynch, the receipt of which is hereby acknowledged, we hereby sell and assign one-half of our interest in the above-described bond and mortgage, and hereby agree with the said Patrick Lynch to pay over to him one-half of all the moneys hereafter collected upon said bond and mortgage, and said Patrick Lynch is the owner of a one-half interest in the said bond and mortgage, and hereby agrees to pay one-half of all expenses incurred in the collection of the same.
    “ BLAIR & TRUESDELL.
    “Syracuse, November 25, 1873.”
    Plaintiffs ask that the court direct a verdict, but defendant requested that the court submit “ as questions of fact upon all the evidence in the case such matters as the court thinks the case turns upon; one being the question as to whether the defendant employed the plaintiffs to purchase the mortgage for him, and agreed to pay them for the same if they did; and the second being as to whether the mortgage became the property of the defendant by virtue of plaintiffs’ purchase of the mortgage from John O. S. Lynch.” The plaintiffs insisted upon the direction of a verdict on the ground that there was no question of fact for the jury, as “ there was no dispute upon the evidence upon the main proposition that Blair & Truesdell, as agents for Patrick Lynch, transacted this business, and that he undertook to repay to them the amount of the money.” The motion was granted, and a verdict directed, and the defendant excepted to the ruling, as well as to the refusal of the court to submit the case to the jury, as requested.
    
      Louis Marshall, for app’lt; Forbes, Brown & Tracy, for resp’ts.
    
      
       Reversing 35 Hun, 663, mem.
      
    
   Finch, J.

If we assume that the learned trial judge correctly decided that the plaintiffs’ evidence was sufficient to establish the contract pleaded beyond any necessity for submitting that question to the jury, because there was no direct contradiction of the witnesses, and the circumstances tending to raise doubt or suspicion were more than balanced by the silence of the defendant, who might have made an effectual denial,—an assumption not above criticism, and as to which we do not all agree,—there yet remains a material question which, if not decided in favor of the defendant, should at least have been submitted to the jury.

The statute of limitations was pleaded as a defense, and confessedly barred the right of recovery unless the debt was revived by a payment upon it. So far as such payment is sought to be deduced from the collection by plaintiffs of the sums obtained from John 0. S. Lynch through the pressure of an examination and an order of the court, it is quite clear that the effort must fail. The efficacy of a payment to avert the effect of the statute as a bar resides in the conscious and voluntary act of a debtor, explainable only as a recognition and confession of the existing liability. But here there was no act of the defendant. He paid nothing to the plaintiffs. The man who did pay was not his agent, or acting, or authorized to act, in his behalf. The payment which he made was on his own debt to plaintiffs, and not on defendant’s contract with them. The very existence of that contract was unknown to him, and the fact of his payments unknown to defendant until after they were made. The debtor paying did so by compulsion, and not in obedience to any direction or request of the defendant. The money paid never belonged to the latter, but passed from the ownership of John O. S. Lynch to that of the plaintiffs. Its transfer was in no respect the act of the defendant, and could serve to indicate no purpose or intention of his. One must go outside of the act, and busy himself with spoken words and debatable inferences, changing its inherent and obvious character before it can be connected with the defendant, and then it amounts only to a direction that plaintiffs should collect from their debtor a sum due to them, and, when that remedy was exhausted, a promise that the defendant ’ would take the security and pay the balance remaining. If those payments operated to reduce the defendant’s liability, it was not through any act or agency of his, and their existence indicates absolutely nothing as a recognition or admission on his part. They were entirely consistent with a denial by him of any liability whatever, and with an utter repudiation of the alleged contract. They might equally have been made if plaintiffs had held the claim in their own right, having no recourse against the defendant, and so open to a complete explanation in no manner dependent upon any purpose or intention of his. We should infringe a very wise and valuable rule of evidence if we gave to the act of - John 0. S. Lynch a constructive effect amounting to recognition of a contract by the defendant, the existence of which he could nevertheless consistently dispute.

The other payment relied upon was that of $1,800, in exchange for which the plaintiffs executed and delivered to the defendant an assignment of one-half of the Slattery mortgage. The consideration for this payment was expressed in writing by the parties concerned; and the terms of that instrument, so far from purporting a payment upon the contract pleaded, are on their face, and without explanation, "inconsistent with the existence of that contract. The writing expresses that the payment was made upon a contract of purchase, and in full discharge of that contract. It not only fails to admit that something more might be due or become due, but negatives any such inference. It speaks of the mortgage as being the property of the plaintiffs, and involves the concession that only one-half of it became the property of the defendant, and that by a purchase then and there made. Stopping with the written paper, the conclusion is irresistible that the $1,800 was paid upon a contract of purchase made at its date, and not upon a broader one already existing. But the plaintiffs offer . an explanation. Having proved a previous agreement, by the terms of which they were to obtain the mortgage for defendant, and hold and enforce the legal title for his benefit, looking to him for direction and for the reimbursement of their unpaid advances, they further testify that the $1,800 was one-half of the $3,600 which that contract called for, and that after such payment they demanded of defendant the balance remaining due, which he promised to pay. They then argue that the assignment made was a transfer of the legal title pro tanto for the protection of the defendant, and that both the assignment and the payment made were consistent with the contract of agency alleged, and were steps in furtherance and in execution of that principal contract. By that process they seek to show that the payment of $1,800 was made and accepted upon the contract pleaded.

The question is not without its difficulties. It cannot be decided in favor of plaintiffs as a pure question of law. The most that they can reasonably claim is that it raised a question of fact, or a mixed question of law and fact. Adhering to the assumption upon which our reasoning has been founded, that- the contract of agency was proved beyond contradiction, and to be taken as a conceded fact, we have a case in which two contracts have been proved, upon either of which the $1,800 might have been intended to apply, and upon one or both of which it must have been applied. The writing indicates one application; the conversations another. It does not solve this difficulty, to say that the assignment was but an incident in the execution of the principal contract, for the defendant may have intended not to recognize or admit it by a payment upon it, and for that very reason have made a special contract of purchase, upon which alone his money should be applied, and which only he would recognize. The facts proved admit of conflicting inferences; and it seems to us, therefore, that the question whether the payment made in form upon the contract of purchase was also made and accepted upon the contract of agency within the intent of the parties was a question which, under proper directions from the court, should have been submitted to the jury. The defendant asked to go to the jury upon all the evidence in the case as to such matters as the court should direct, but the request was refused; the court holding that there were no questions of fact, and directing a verdict for plaintiffs. To this there was an exception, which we think points out error.

The judgment should be reversed, and a new trial grantd; costs to abide the event.

All concur, except Huger, 0. J., not sitting.  