
    James H. Bouton, Appellant, v. Sarah Ann Hill, Respondent.
    
      Statute of Limitations — the effect of pa/rt payments is determined by the rules of the common law ■— the indorsement on a note, .given for too large an amount, of the excess avoids the statute — effect of dating back the iiidorsement.
    
    In an action brought upon a promissory note, it appeared that the note was for §800, dated March 15, 1888, signed by the defendant and payable to the order of the plaintiff; the defense to the action, which was commenced on December 24, 1892, was the Statute of Limitations. There was an indorsement upon the note which read as follows : “ March 15th, 1888, p’d hereon §117.50,” and was shown to have been made on or about the 15th day of December, 1890. At the time the plaintiff took the note, both parties figured upon the amount due, but did not agree, and finally the plaintiff said he would make the amount §800; the defendant said that she did not think it was right, to which the plaintiff replied that if it was not right he would make it right, and that the defendant might get others to figure upon the amount. After the note was signed another person figured up the amount and ascertained that a mistake had been made in favor of the plaintiff of. §117.50, and the parties then agreed that in order that the defendant might not lose interest, this amount should be indorsed on the note as of its date, and the amount was so indorsed in the presence of all the parties on or about the 15th day of December, 1890.
    The plaintiff claimed that this indorsement of §117.50, actually made on or about the 15th day of December, 1890, was such a payment, indorsement and reissuing of the note as took it out of the Statute of Limitations.
    
      Held, that the transaction amounted to a part payment;
    That the last clause of section 895 of the Code of Civil Procedure left the courts to determine what constituted a part payment and its effect, and left the rules of evidence as to the effect of a payment or part payment as they were at the. common law, under which a part payment had always been held to be effectual in removing the bar of the Statute of Limitations;
    'That as the note in question was given with the understanding that if the amount named in it proved to be more than the true indebtedness of the maker to the payee, that the payee would make it right, and as, in fact, it was conceded that the payee was entitled to receive a sum of $117.50 less than the face ■of the note, there existed a partial failure of consideration to that amount, which was a defense pro tanto, and constituted a claim in favor of the defendant: and against the plaintiff which the defendant could apply in part payment of the note, and such as would, by its application, take the note out of the operation of the Statute of Limitations ;
    That the defendant’s claim that she would be deprived of the benefit of the interest upon the sum of §117.50, if it was indorsed as of December 15, 1890, emphasized her acknowledgment of the balance of the note and of her intention to pay it ;
    That as the facts were undisputed, and as under these conceded facts the Statute of Limitations was not a defense to the note, there was nothing for the jury to pass upon and the court should have directed a verdict for the plaintiff.
    Appeal by the plaintiff, James H. Bouton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the'clerk of the county of Delaware on the 30th day of January, 1895, upon the verdict of a jury rendered after a trial at the Delaware Circuit dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 29th day of January 1895, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Soop & Andrus and I. H. Maynard, for the appellant.
    
      James R. Baumes, for the respondent.
   Herrick, J.:

This is an appeal by the plaintiff from a judgment rendéred •against him and in favor of the defendant, and from an order denying a motion for a new trial made upon the minutes of the court.

The action is upon a note for $800, dated March 15, 1883, signed by .the defendant, and payable to the order of the plaintiff. The •defense is the Statute of Limitations and usury. The evidence .given upon the trial was insufficient to establish usury, and the case turned upon the defense of the Statute, of Limitations. It is con-ceded that the action was commenced on December 24, 1892.

At the close of the evidence the plaintiff asked the court to direct a verdict for the plaintiff, upon the ground that an indorsement on the note of $117.50 made on or about the 15th of December, 1890, but entered on the note as having been made March 15,1883, was such a payment, indorsement and reissuing of the note as to. take it out of the Statute of Limitations, and that such indorsement in 1890 was both a reissuing of the note and a payment upon it.The court denied the motion. There was evidence of another indorsement upon the note of twenty dollars, which plaintiff alleged had been paid upon the note by the defendant, and which if made when it purported to be, would take the note out of the statute. The defendant denied having made such payment or authorized it to be made on her behalf. That question was submitted to. the'jury, who found in favor of the defendant, and there was evidence to sustain their finding that the defendant did not make such payment of twenty dollars, or authorize it to be made, and their finding in that respect will not "be disturbed.

The order denying the motion for a new trial, made upon the minutes, brings up for review the refusal of the court to direct a verdict for the plaintiff upon the ground that the indorsement of' $117.50 made on said note on the 15th of December, 1890, was in effect a payment thereon at that time, which removed the note from the bar of the statute. We will, therefore, consider what the effect of that transaction was.

The note in question appears to have been in final settlement of transactions between the plaintiff and the defendant’s husband, in which the plaintiff held a note of the defendant’s husband, which had originally been for the sum of $2,000, and upon which the plaintiff claimed there was still $900 due.

The defendant’s version of the transaction, when the note in question here was given, is this: “ Mr. Bouton had Mr. Hill’s note with him at the time and we figured from it. He figured from it and I did, and we didn’t agree in our figures at all; I could not make it nearly as much as he did, the amount' that was due, but finally Mr. Hill came in from the barn and I told him how much Mr. Bouton claimed on it, and he said there was no such amount due and not to sign it. ^ * * After he went out Mr. Bouton said he would make it $800, and I told him I thought that wasn’t right, but he was sure it was, and he said, ‘ Sign that,’ and him and his wife were coming out, and if it wasn’t right he would then make it right, and I might get others to figure it. * * * I signed the $800 note-on those terms. * * * I always said I shouldn’t pay anything on the note until it was made right.”

Mr. Andrus, a witness called for the plaintiff, says that he was at-the office of the defendant’s attorney when the question arose as to the true amount that was due between the parties; that they handed him the papers to figure up the amount and ascertain what the true amount of the note ought to have been when it was given; that all the parties were then present, the plaintiff, defendant and her husband, and that he found that a mistake had been made of $117.50. “ There was quite a little conversation as to what should be done with the $117.50, and Mrs. Iiill claimed that she would be deprived of the advantage of the interest on it if indorsed of that date, and then I suggested that we indorse the amount as of the date of the note, and that it would even itself, and I did so. They consented to it, and Mrs. Hill did. She was present, and I had the note there and indorsed it in the presence of all the parties. The indorsement was actually made about the 15th of December, 1890.”

The indorsement spoken of reads as follows : “ March 15th, 1883, p’d hereon, $117.'50.”

The defendant says that the indorsement “ was done substantially as Mr. Andrus states, I think.” So that the facts in relation to this transaction are undisputed, and the only question is' as to their effect.

Section 395 of the Code of Civil Procedure provides that- “ an acknowledgment or promise, contained in a writing signed by the party to be charged thereby, is the only competent evidence of- a new or continuing contract whereby to take a case out of the operation of this title. But this section does not alter the' effect of a payment of principal or interest.”

Before the enactment of this provision of the Code, and the similar statutes that preceded it, oral acknowledgments of the continued existence of a debt were sufficient to take a case out of the operation of the Statute of Limitations : the natural effect of that was to give rise to misconstruction of the words used by debtors in speaking of claims against them, and to multiply per juries. And the reason for the enactment of. the statute was to prevent perjuries, and to prevent the bar of the statute being raised, except when the debtor had given unequivocal evidence of the continued existence of the debt .and of his intention to pay it. A writing signed by him would be such evidence.

The reason that payment, or part payment, was excepted from the ■effect of the statute, was that payment or part payment was considered such an unequivocal act of acknowledgment of the debt, and promise to pay the remainder, as not to be subject to misconstruction or productive of perjury, the act of payment speaking for itself.

The last clause of section 395 leaves the'courts to determine what constitutes a part payment and its effect, and it leaves the rules of evidence as to the effect of such payment or part payment as they were at common law. (First National Bank of Utica v. Ballou, 49 N. Y. 155 ; Mills v. Davis, 113 id. 243; Murdock v. Waterman, 145 id. 55-62.)

Part payment of a demand has, from time immemorial, been held to remove the bar of the statute, and set it running again from the time of such payment.

“ The effect of a part payment in taking a case out of the operation of the Statute of Limitations, or, rather, in enlarging the time during which an action may be brought, is not derived from any statutory provision, but results from the decisions of the courts, and depends wholly upon the reason of those decisions. The reason is, that a part payment made on account of a claim is an acknowledgment by the debtor of his liability for the whole demand, and from-this acknowledgment a new promise on- his part to pay the residue is implied. The undertaking of the debtor as to the unpaid ‘part of the debt is thus, by a legal presumption, renewed and made to date from the time of the part payment.” (Harper v. Fairley, 53 N. Y. 442-444. See, also, Crow v. Gleason, 141 id. 489-493; Adams v. Olin, 140 id. 150-160.)

The efficacy of a payment to avert the effect of the statute as a bar resides in the conscious and voluntary act of the debtor, explainable only as a recognition and confession of the existing liability. (Blair v. Lynch, 105 N. Y. 636-638.)

In the case of Murdock v. Waterman (145 N. Y. 55-62) the court said: “ The effect of a part payment in any case, and against whom it shall operate, is to be determined by the principles established by the decisions of the courts applicable to the subject. The question has most frequently arisen in actions of assumpsit brought upon promises for the payment of money, against the party to the contract, in which the Statute of Limitations' has been interposed as a defense, and the general principle has been asserted with great uniformity that a part payment, available to take the case out of the statute, must have been made by the debtor or his authorized agent, or, if made originally without his authority, it must have been subsequently adopted by him as his act. This view is founded upon the reason upon which a part payment is held to renew or continue a debt. Part payment of a debt by a debtor constitutes an admission by the person obligated to pay of his liability for the whole debt upon which the partial payment is made, and justifies an inference of a new promise'made at that time to pay the portion remaining unpaid. The courts, acting upon this admission and inferring therefrom the new promise, treat the contract as renewed from the time of the part payment, and the payment as giving a fresh start to the running of the statute.”

■ It will be seen from the cases cited that the reason that payment: is held 'to remove the bar of the statute is that it is an act acknówlédging liability for the whole demand, and the law implies a promise-to pay what is left of it, the promise so "implied 'dating from the', time of the part payment.

What, then, is a payment that will"take the case out of the operation of the statute ?

In its restricted sense, payment has been defined to be the discharge in money of a sum due. In more liberal and general terms,, it may be defined as anything which the creditor accepts, or in lawsliould accept," in satisfaction and discharge of the .debt due him. The performance of services, if accepted or agreed to be accepted in. payment, is sufficient.

A transfer of credit by consent of parties is- equivalent to payment. (National Bank v. Burkhardt, 100 U. S. 686-689.)

An agreement that a debt due, or about to become due, to- a~ debtor shall be deemed a payment on a debt due from the debtor-operates as a payment and satisfaction. (Davis v. Spencer, 24 N. Y. 386 ; Holcomb v. Campbell, 118 id. 46-54.)

But in determining what is a payment within the meaning of the-. statute and the decisions of the courts, sufficient to take a demand out of the operation of the Statute of Limitations, the courts have been still more liberal.

The delivery by a debtor to a creditor of the note of a third person as collateral to the payment óf his debt is equally significant as an acknowledgment by the debtor of his liability for the whole demand, as would be an absolute payment of a like amount, and is within the reason of the rule which makes such an act an acknowledgment of a liability from which a new promise to pay the residue is implied. The act is of the same character and equally unequivocal as a payment in fact. The effect of the transaction is the same, whether the collateral security or conditional payment is made available, and results in the payment of any part of the debt or not. The Statute of Limitations is answered from the time of the delivery of the collateral security. (Smith v. Ryan, 66 N. Y. 352.)

So the delivery to the creditor of a policy of life insurance, Or of the renewal certificate of such a policy, as collateral security for the payment of a debt, is sufficient to constitute a renewal of the debt, and the statute will begin to run from the time of such delivery. The theory upon which the delivery of the policy saves the operation of the statute is that the debtor by such act acknowledges the debt, and evinces a willingness to pay. (Miller v. Magee, 17 N. Y. St. Repr. 547.)

Now, in the case before us we have a note given, with the understanding that if the amount named in it is more than the true indebtedness of the maker it shall be made right. It appears that in truth the holder of the note is entitled to receive $117.50 less than the face of the note. If during the lifetime of the note the plaintiff had brought suit against the defendant upon it for- the' face thereof, the defendant could have pleaded a partial failure of consideration, and had the amount of $117.50 deducted from it.

As between the parties to a note, a defense of a total or partial failure of consideration is good. (Sawyer v. Chambers, 44 Barb. 42.). A partial failure is a defense pro tanto. (McKnight v. Devlin, 52 N. Y. 399.)

If the note had passed into the hands of a third person, who had brought his action upon it against the defendant, who had- thereby been compelled to pay the full amount specified in'it,-I do not think there is any question but that she could have recovered from the plaintiff the difference between the face of the note and the actual indebtedness to the plaintiff, upon showing the agreement between them at the inception of the note. ■

' • The difference, if any, that should be found to exist between the face of the note- and the actual amount due the plaintiff, being something that the defendant could' assert as a defense pro tanto to a suit upon the note brought against her by the plaintiff, or which she could recover from him in the event of such note .going into the hands of a third person, and she being compelled to pay the whole amount thereof, such difference constituted a claim- ór credit in favor bf the defendant against the plaintiff, something which could be applied in partial reduction, extinguishment or payment of the note.

And it was so applied by consent of parties; the indorsement was not made by the plaintiff, but by a third party, with the consent, or it may rather be said, by the instruction of the defendant. And, it was done under such circumstances as to show an acknowledgment of the balance of the note, and an -intention to pay it. , Her claim that sh'e would be deprived of, the benefit of the interest upon it, if it was indorsed as of thát date, emphasizes her' acknowledgment • of the balance of thé note, and'of her intention to pay.-

■' 1 The whole transaction brings it clearly -within' the reason -of the decisions I have cited, for allowing payment to prevent the Operation of the statute, and within- the meaning of the statute, and the principle of the cases hereinbefore referred to, I think it must be held fo be a payment upon the nóte, made When the indorsement Was, in fact, placed on the note.

'' The' evidence, by which the facts'! have recited were established, was not objected to, the facts were undisputed, the Statute of Limitations had, by reason Of the circumstances I have detailed, no application to the case, and there was nothing for the jury to pass upon, and the court should have directed a. verdict. (Miller v. Talcott, 54 N. Y. 114-119.)

v If the court had held the transaction of December 15, 1890, a payment as herein indicated, the question as to the indorsement of fifty dollars January 30,1886, and of - twenty dollars December 30, T886, would have been of no consequence, the bar of the statute -being removed by1 the 'transaction of December 15, 1-890. ■

' Tile judgment should be reversed, and a new trial granted, costs to abide the event. ■

Parker, P. J., Landon and Merwin, JJ., cincurred; Putnam, J., concurred in result.

Judgment and order reversed, new trial granted, costs .to abide the event.  