
    Meade against M'Dowell.
    1812. Pittsburg, Wednesday, September 9.
    
    If A guarantees to B the performance of any contract he may make with C, elapse after the and before the bringing of suit j^^uarantyfno acknowledgment by Csubsequent to the °™*rao*> out of the staBut the declarations of Care prove the contract between and C, though made subsequent to the contract.
    A requested B give C any assistance in the purchase of goods, by letter 01. otherwise, syying “you on«me^accounbi!- “ ble with him, contract “ may make.” ATefrUhatacontract by cto † a Preraite™ing\^contract by C with a third person, was within A’s promise, but that it did not make A a joint debtor with C to B. ' If one man confides to another the power of making a contract, he confides to him the power of furnishing evidence of the contract; and if the coutract is by parol, subsequent declarations of the party are evidence, though not conclusive:
    IN ERROR.
    IN error to the Common Pleas of Crawford, the case was as follows: It was assumpsit to December term 1807, by the defendant in error, who was plaintiff below, to recover from Meade the sum of 572 dollars and interest, due to the plaintiff by one Wilson, for whom the defendant had made himself responsible. Pleas non assumpsit, and non assumpsit infra sex anuos.
    Upon the trial of the cause, the plaintiff gave in evidence the following letter from the defendant to him.
    “ Dear Sir,
    “ Mr. Wilson having proposed to go to Philadelphia, in “ order to purchase goods, I wish you to give him any as- “ sistance in your power, by letter or otherwise. You may “ consider me accountable with him to you, for any contract re may make. I am, &e.
    “David Meade.
    “ August 15, 1798.”
    , ^ He then offered the following letter and memorandum from Wilson, to prove the contract, and the amount.due from Wilson, which was objected to by the defendant, but admitted the court. I -
    “ Pittsburg, April 23d, 1799.
    u Sir
    r , “ Annexed I have given you an exact statement ot the se- “ veral sums for goods bought by me in your name. I have “likewise recited, and confirmed the agreement-made “my part, which I shall consider to all intents and purposes “as binding as an agreement in any form whatever. I “ mentioned no time for the payment of the advance agreed on, ,, . r, ,. , , , , , ’ “ in confidence that you are disposed on that head, to be as “favourable as I could reasonably request. I hope “ you will be disposed to use any influence that you can with " “ propriety, to dispose the several creditors to be as indul- “ gent as the nature of the business will admit. A small “ addition to the assortment, appears necessary to suit the “ demand of this place; on this I have taken the liberty to “ write down, mentioning the articles wanting, stating at the “ same time that you were not present, but that the first op- “ portunity I did not doubt your concurrence. The amount “ would not exceed 300/. at highest. Should this meet your “ approbation, the terms as relates to you may be considered “so far as relates to dry goods the same as before. As to “ groceries, or articles bought at 90 days, they will not bear “ an advance. I am, &c.
    “ Thomas Wilson.”
    “ Received, Philadelphia, by means of letters of credit “from Alexander M'-Dowell, Esq. of Franklin, of sundries, “merchandize to the following amount, viz.
    1798, Nov. 13th f (enumerating the vendors) 23d t whole amount, 1870/. 2s. 6d.
    
    “ And whereas at the time of receiving from the above “ named Alexander M'Dowell, letters empowering me to “purchase the goods, which constitute the above amount, “ there was a verbal agreement with the said M'Dowell, I “ do hereby acknowledge and confirm the same, which was “ as follows: In consequence of a letter from David Meade, “ esq. of Meadville, the said M'Dowell agreed to order on “ his own credit, such goods and to such an amount as I “ might have occasion to procure for my sole use and dis- “ posai, I on my part agreed, and do now hereby agree and “ bind myself for the amount of the dry goods, which is “ 1376/. 9s. 4d,, to pay to the said M'-Dowell an advance “of twelve and a half per cent, making 170/., I sav 172/. Is. “ 2d., and to defend and keep safe the said M'Dowell from “ all loss, damages or suits, in or on account of the property “ which constitutes the whole amount, which is 1870l. 2s. 6d.
    
    “Thomas Wilson.
    “ Pittsburg, April 23d, 1799.”
    The plaintiff, to take the case out of the statute of limitations, then offered the following memorandum, which was also objected to by the defendant, but admitted by the court".
    
      “ Franklin, Jane 25th, 1802.
    “ Mr. McDowell and myself have this day taken up the in- ' « voices of all goods purchased by me on his credit, in pur- “ suance of the agreement alluded to before, and find that “the total amount of dry goods, &c. for which I am to pay “him an advance of twelve and a half per cent,, is 1715/. « 19s. 1 \d. which makes the amount due him for said ad- “ vanee 572 dollars.
    “Thomas Wilson.”
    The court charged the jury, that the defendant’s letter of August 15th, 1798. rendered him liable for the contract in question, if made; that the letter and memorandum of Wilson of the 23d April 1799, were proof of that contract in this suit, and that the acknowledgment under date of the 25th June 1802, took the plaintiff’s demand out of the statute of limitations: — to all which the counsel for the defendant tendered a bill of exceptions. Verdict for plaintiff, damages 536 dollars 32 cents.
    Foster, argued for the plaintiff in error.
    Baldwin, contra.
   Tilghman C. J.

After stating the facts, delivered his opinion as follows:

This cause was tried on the issues of non assumpsit and the act of limitations, and three questions arose on the trial. 1st, Whether the writings signed by Wilson were legal evidence against Meade? 2d, Whether Meade was responsible for the premium of twelve and a half per cent.? 3d, Whether the writing of the 25th of June 1802 took the defendant’s case ®ut of the act of limitations?

1. I have no doubt of the writings signed by Wilson being evidence against Meade. Wilson was to make the contract, and Meade to be responsible. Meade having confided to Wilson the making of the contract, confided to him of consequence the power of furnishing evidence of the contract. The contract having been made by parol without witnesses, it was impossible to prove it in any other manner than by subsequent declarations of the party. But although these declarations were evidence, they were not conclusive. If there was any collusion between Wilson and McDowell to the prejudice of Meade, it was competent to Meade to show it.

2. It is very clear that Meade was answerable for the premium of twelve and a half per cent. It falls within the words of his engagement, which was to be responsible for any contract which Wilson should make with M'Dowell. It falls’ also directly within the spirit of the engagement, because nothing could be more reasonable than that M'Dowell should receive a compensation for the risque he ran, in. making himself liable for the goods purchased on account of Wilson.

3. As to the act of limitations, there are cases which have gone great lengths to prevent its operation, but none which come up to the present point, Meade’s assumption was made in 1798, and the contract for which he was to be responsible was made in the same year, the subsequent written acknowledgment of which, bears date the 23d of April 1799. This is more than six years before the commencement of the action. It does not appear at what time the premium of twelve and a half per cent, was to be paid, and if that had been left to the decision of the jury, and they had found for the plaintiff, it would have been all right. But the court gave it in charge, that the writing of the 25th of June 1802 took the case out of the act of limitations; so that the point is reduced to this, whether the act of limitations having once attached, it was in the power of Wilson to deprive Meade of the benefit of it. I cannot think that, it was. The farthest that any case has gone, is that where two persons make a joint and several engagement, the acknowledgment of one shall take the case out of the statute as to both. The reason of which is, that the contract being joint as well as several, there is an absurdity in its being in force as to one, and not as to the other. It must either be in force against both, or its joint nature is destroyed. But, in the present case, I consider Meade as having made an engagement^ himself. He was in no kind of partnership with Wilson, but promised that he would be responsible for any contract which Wilson should make. Wilson then made the contract, for himself alone; so that each acted severally and not jointly. When Wilson made the contract, Meade became bound to see it performed, and there all authority given by Meade to Wilson ended. But it is said, that the words of Meade's engagement are, “ that he might be considered as accountable with Wilson to McDowell” and therefore it was a joint contract. I thought at first there was weight in this remark. But upon reflection, I am satisfied that the contracts of Meade and Wilson were entirely several. The true construction of Meade's engagement is, that he would be accountable for. any contract made by Wilson. To make a joint contract, there must be a joint act. One partner may act for both. But there was no partnership between Meade and Wilson, nor had Meade any authority either directly or by implication of law to act jointly for himself and Wilson. His engagement was therefore simply for himself. That being the case, it Was not competent to Wilson to bind Meade by a new assumption after the act of limitations had attached. I am of opinion, that there was error in that part of the judge’s charge which respected the act of limitations. The judgment is therefore to be reversed, and a venire facias de novo awarded.

Yeates J.

I see no solid ground of objection against receiving in evidence the letter of Thomas Wilson to the defendant in error, dated the 23d of April 1799. Under the letter of the plaintiff in error to the defendant, dated the 15th of Avgust 1798, he undertook to be accountable to M'Dowell for any contract he might make with Wilson, respecting his giving him assistance by letter or otherwise, in the purchase of goods in Philadelphia. He had therefore-constituted Wilson his agent to make the cpntract; and of-course the written declarations of the latter, as to all acts done within the scope of his authority, are admissible against his constituent, and binding upon him. Nor do I feel any difficulty in asserting that Meade became liahle for the last goods purchased tinder the credit of M'Dowell, as well as the premium of twelve and-a half per cent. The guaranty is unlimited in its terms, and we find no expressions in it, restrictive of dealing with individuals at any one time.

The only remaining question is, whether the right of recovery by the plaintiff below, was barred by the act of limitations. The plea of the defendant below, that he did not assume within six years, was unquestionably defective, and might have been taken advantage of on demurrer. In all ac tions brought for breaches of promises founded on collateral 'and executory considerations, the proper plea is that the cause of action did not accrue within six years; for it is immaterial when the promise was made, if the cause of action, in such cases arose, within the limited period. Bull. 151., 2 Saund. Williams’s note 63 b. Where a declaration stated, that in consideration the plaintiff would receive A and B into his house as guests, and diet them, the defendant promised to pay himi a certain sum of money, &c., and the defendant pleaded non assumpsit infra sex annos, to which the plaintiff demurred, the court held it to be no plea, and gave judgment for the plaintiff. Gould v. Johnson, 2 Salk. 422., 2 Ld. Ray. 838. S. C. But in this instance, the matter went to the jury on.the statute of limitations, and the point now to determine. is, whether that statute was a bar to the demand, however defectively the same was pleaded.

The statement sets out the substance of the letter of guaranty of the 15th of August 1798, tmd then proceeds to aver, “ that M'Dowell did give his assistance to the said Thomas “ Wilson, and in consideration thereof the said Wilson did “ on, the 25th June 1802, by his statement in writing ac- “ knowledge that there was due to M’Dowell 572 dollars, “for the assistance which he had given &c. By reason “ whereof &c.”

It appears by the bill of exceptions, sealed by the President of the Court of Common Pleas, to have been the opinion of that Court, that the adjustment of the 25th of June 1802 took the then plaintiff’s demand out of thé statute of limitations.

To judge correctly hereof, we must look to the period of time when M'Dowell’s cause of action accrued. There can be no doubt that this took place in November 1798, when the last parcel of goods was contracted for and delivered under the guaranty, and that the act of limitations then began to run. Unless some new subsequent promise on the part of Meade, either express or implied, to pay this demand, can be shown, within six years before the commencement of this action, the law prevents the right of recovery. After the goods were laid in by the assistance and through the credit of M'Dowell, Wilson could no longer be said to represent the interests of Meade. His character as agent for a particular purpose, was then functus officio. He might still bind himself by a settlement made with M'-Dowell, but he could not bind Meade three years and a half after the transactions under the guaranty had closed. If it was competent to him to revive the liability of Meade after that period of time, he might equally do it after, the lapse of twenty or thirty years, .which is wholly inadmissible. That responsibility arose from the collateral engagement of Meade in favour of Wilson; but though when the goods were laid in upon the credit of M'Dowell, Wilson and Meade became equally his debtors, they were separately liable to him on distinct grounds; and the subsequent acts of Wilson respecting the original transaction, could not be imputed to Meade any further than those of a mere stranger. The present case appears to me to be directly within the principle established, in Bland v. Hasling, 2 Vent. 151; and though I always experience pleasure, when the rules of law subserve my ideas of substantial distributive justice, yet I do not find myself at liberty to decide against the plain words of a statute, calculated to promote the most beneficial effects, from my private notions of equity in the .abstract.

I cannot therefore concur with the Court of Common Pleas, that the adjustment of the 25th of June 1802 took this case out of the act of limitations, and am of opinion that the judgment of that Court should be reversed, and a venire facias de novo be awarded.

Brackenridge J.

An exception to the evidence in this case, might seem to arise on the ground of its being evidence of an assumpsit by Wilson, not by Meade singly; that is as much as to say, the action ought to have been against both on a joint assumpsit. An exception of this nature does not go to mere matter of form; for it is of substance that a party is not liable singly, but ought to have another proceeded against, who is also liable, and ought to bear his part of the burthen. Thus a party in a joint bond has a right to call for a proceeding against his obligor, that his estate may also be liable under the judgment. In the case of a note of hand by two or more persons, the same law. In the case of partners in trade the same law. Nor is it according to the truth of the case, to allege, that one became bound, or did assume, where the obligation or assumpsit is by two or more. It is a right which the quo-contracting party has, that all may be made equally liable to have their property taken in execution, and contribute to satisfy the demand. But as to the party with whom the contract is made, he can have no interest in considering it joint or several, but as it will tend to satisfy his demand; and, in strictness, where several are bound, each is bound, and the agreement may be said to be, in the nature of it, joint or several. But for the sake of the substance, and that all shall contribute, it is settled as a principle, that unless said to be several, or understood to be so in the nature of the undertaking, at the same time, and to the same extent, all must be sued. Applying these principles, there might be some difficulty in this case, to say whether Meade ought to be considered a party to the contract which Wilson made with McDowell, so as to be liable to be joined in a suit by M‘Dowell v. Wilson; or whether the assumpsit with Meade ought not to be considered collateral and distinct, and to arise on Wilson having made a contract with McDowell. On strict principle I would take it to be most tenable to consider the assumpsit of Meade as collateral; and in that case, the evidence would not support a joint assumpsit, but as the case is, will best correspond with the allegation of an assumpsit singly.

But though something on this head was thrown out in the argument, I do not find that the exception to the evidence was taken on this ground at the trial; at least it is not stated in the bill of exceptions, which goes to other matter, the liability of Meade on his letter to answer for the contract. The letter on which the plaintiff considers him so liable, and which is of the 15th of August 1798, speaks of Wilson going to Philadelphia to purchase goods, and wishes the assistance of him, M'Dowell, by letter or otherwise. It was not of M'Dowell the goods were purchased, or to be; but of merchants to whom M-Dowell might be known, and who might be induced to give credit on Wilsoids letter, or otherwise. What was M Dowell to get. for this risque, but an interest in the sales of the goods, or a premium in the nature of insurance? Meade might have in view only a contract for a contingent interest in the profits; but the terms of his letter will go to any consideration, on which McDowell might be induced to lend his name.

The premium being a per centage, depended on the amount ©f goods purchased. The books of the merchants, or abstracts proved by those who kept the books, by deposition and cross examination on notice given, &c. might have been evidence. But an abstract acknowledged by the contracting party, Wilson, is not inferior. Why should M'Dowell be driven to the delay, expense and trouble of other proof?

But Meade had not notice of all these matters, the ground of demand, before suit brought. The case was not of that nature to require notice and demand, before a cause of action could arise. Meade must be presumed cognisant of all the transactions, and to follow up and know from M’Dowell from time to time, to what extent he considered him, Meade, liable, and what of the contract that might have been made, remained unperformed. Notice and demand are necessary where a party cannot be supposed to know the duty that he is to perform, or contract to fulfil. Can this be supposed to be the case where Meade had identified himself in the liability? Suspecting a collusion of Wilson with M'Dowell, he might have given notice to produce the evidence of the merchant’s accounts. It is an affectation of surprise in him, to say that he is surprised on their not being produced. It would be a real surprise on M'Dowell to call for this proof, on the trial, without having had notice to produce it.

On the last head of exception, there is as little difficulty as in any of them, the statute of limitations.

In Wilson’s letter of the 23d of April, 1799, he not only solicits the influence of M'Dowell as to a delay on the part-of the merchants, but he speaks of “ no time mentioned for the payment of the advance agreed upon, in confidence that he is disposed on that head to be as favourable as could reasonably be requested.” This gives the transaction an executory nature, and it would be impossible to say what time would raise a presumption in favour of Wilson. It must be a fact for the jury. As to Meade, certainly not a less time than six years from the close of accounts, and the final settlement of Wilson and M'Dowell; and this, which was 1802, brings the matter within the six years. I must therefore be of opinion that the judgment be affirmed.

Judgment reversed.  