Gambar halaman
PDF
ePub

affirmed without opinion in (1916) 216 N. Y. 746, 111 N. E. 1084, the court said that the provision in the deed to the defendant, by which she agreed to pay the plaintiff's note as a part of the consideration of the conveyance from certain other parties, was a covenant which the plaintiff might enforce, and that the Statute of Limitations did not run thereon until twenty years thereafter.

It was held in Greenley v. Greenley (1906) 114 App. Div. 640, 100 N. Y. Supp. 114, that the Statute of Limitations did not begin to run in favor of the grantee against a creditor of one who conveyed property under an agreement by the grantee to manage and dispose of the same and, after reimbursing himself for his expenses and services, to pay the debts of the grantor, until the contingency specified in the agreement had occurred; that prior to this time the grantee's mere repudiation of the agreement would not start the Statute of Limitations running in his favor and against the creditor; that the agreement was a continuing one, which might be enforced against the grantee by the creditor of the grantor, even after the Statute of Limitations had run against the notes evidencing the creditor's claim.

If the statute has already run against a mortgage debt at the time it is assumed by a purchaser of the property from the debtor, this assumption and promise to pay may operate as a waiver of the bar of the statute, or as an estoppel on the part of the promisor to urge such bar as a defense in an action against him by the creditor. Thus, where at the time of the exchange of properties the Statute of Limitations had already run against the mortgage debt on one of them, but payment of this debt was expressly assumed, as a part of the consideration, by the party to the contract who took this property in the exchange, it was held in Davis v. Davis (1912) 19 Cal. App. 797, 127 Pac. 1051, that he could not thereafter successfully set up the bar of the statute previously running as a defense in a foreclosure suit. The

court said that if he were permitted to maintain this defense the result would be that he would not pay for the property all that he agreed to pay. And the doctrine was quoted that a vendor may direct how the purchase money shall be paid, that he may make such disposition of it as he wishes, and if the vendee agrees to pay according to the vendor's directions he cannot set up a defense that the vendor was under no duty to apply the money in this manner.

In Fender v. Haseltine (1904) 106 Mo. App. 28, 79 S. W. 1018, which is to the effect that the defendants, in assuming payment of a note past due executed by the plaintiff, became the principals therein and the plaintiff became surety, the liability of the defendants for failure to pay the note was regarded apparently as subject to a plea of limitations after the expiration of the statutory period from the date the note became due, and not from the date of the defendants' promise, but the case is not a direct authority on the point, because, in either event, the limitation period had not expired.

2. Debts due in future.

Where the indebtedness which a third party assumes and agrees to pay is not yet due at the time the promise is made, the Statute of Limitations in favor of the promisor and against the creditor does not begin to run until the maturity of the debt. BOGART V. GEORGE K. PORTER CO. (reported herewith) ante, 1045; Carnahan v. Lloyd (1896) 4 Kan. App. 605, 46 Pac. 323; McCaslin v. Pittsburgh Foundry & Mach. Co. (1921) - Tex. Civ. App. —, 232 S. W. 887 (see this case under III. a, 1, supra). See also Roberts v. Fitzallen (1898) 120 Cal. 482, 52 Pac. 818, infra. As to running of statute between debtor and one assuming debt subsequently maturing, see Patterson V. Colmer (1886) 4 Sadler (Pa.) 138, 6 Atl. 758, and Crofoot v. Moore (1831) 4 Vt. 204.

In Carnahan v. Lloyd (1896) 4 Kan. App. 605, 46 Pac. 323, supra, it was held that when the grantee of mort

gaged premises assumes and agrees to pay the mortgage debt (due at a future date) as a part of the purchase price, without specifying any time for payment, no cause of action upon which the Statute of Limitations can run accrues against him until the debt assumed becomes due and payable according to the contract of the original party, and that the cause of action against the grantee does not accrue immediately on the date of the assumption of and agreement to pay the debt.

And it was held in Roberts v. Fitzallen (1898) 120 Cal. 482, 52 Pac. 818, that where a purchaser of land in the deed assumes and agrees to pay a mortgage thereon, which is not yet due, the Statute of Limitations does not begin to run in his favor against the holder of the mortgage, on this promise, at the time it is made, as a separate and distinct undertaking; that the statute runs against the mortgage obligation, and not against the promise as a new and independent agreement; and that the grantee, in a foreclosure suit brought by the holder of the mortgage debt, may be held liable for a deficiency judgment where the statute has not run against the mortgage.

Where the bond which was secured by a mortgage was not payable until the death of a person named, it was held in Acton v. Shultz (1905) 69 N. J. Eq. 6, 59 Atl. 876, that on a conveyance of the mortgaged property and an assumption of the mortgage by the grantee, the Statute of Limitations in favor of the grantee and against the holder of the bond did not begin to run until the subsequent death of such person, and that the mere failure to pay interest on the bond for sixteen years prior to the bringing of the action was not a bar.

[blocks in formation]

cured by deeds of trust subsequently executed should have a certain time within which to bring suit. It was held that the statute applied to a case where one to whom land was conveyed subject to a deed of trust assumed in the deed payment of the indebtedness, subsequently due; that this assumption of the debt was for the benefit of the holder of the note evidencing the debt, and was as effective as if the contract had been executed in the form of a new note and deed of trust directly in favor of the holder of the note, instead of a contract of assumption of an obligation theretofore executed by the grantor; and that the obligation of the grantee was, therefore, within the statute, even though limitations had run as regards the original debtor.

b. As between debtor ́and person assuming debt.

Different conclusions have been reached on the question whether, as between the promisor and promisee, the Statute of Limitations begins to run in favor of the former on his promise to discharge the latter's indebtedness to a third person before the latter has in fact sustained injury by payment of the debt, on breach of the promise. The question would seem to depend upon the nature of the contract by which the debt is assumed; that is, whether it is merely a contract of indemnity. One line of authorities holds that the contract is not one merely of indemnity, and that the Statute of Limitations begins to run at the maturity of the debt, as between the original debtor and the person who assumes and agrees to pay it, even though the former has not discharged the same.

Thus, in Patterson V. Colmer (1886) 4 Sadler (Pa.) 138, 6 Atl. 758, where a part of the consideration of the purchase price of property sold by the plaintiff to the defendant was the payment by the latter of a certain indebtedness owed by the former, subsequently maturing, it was held that as soon as this debt became due the defendant was bound to pay the same, and if he did not do so, or tender payment, there was a breach of

his contract, and the Statute of Limitations then began to run; that the contract was not one to indemnify the plaintiff, and that the statute did not begin to run merely when the plaintiff was compelled to pay the debt.

So, where a purchaser of chattels, who had given his note for the purchase price, divided the property with a third person, who agreed to pay half of the note, but failed to do so, and the maker thereof was subsequently compelled to pay it in full by an action brought against him by the payee, it was held in Joiner v. Perry (1846) 32 S. C. L. (1 Strobh.) 76, that, as between the maker of the note and the third party, the cause of action in favor of the former arose when the note subsequently became due and the third party failed to keep his promise, and not at the subsequent date when the maker was compelled to pay the note in full; that by postponing such payment, for which the payee could look only to the maker of the note, the latter could not prevent the operation of the Statute of Limitations upon the promise which the third party had made to him.

And where a member of a firm sold his interest therein to the other partners, who agreed to pay the partnership obligations, but the retiring partner was subsequently held liable on a note of the firm, and the judgment rendered against him on this not was, more than two years thereafter, affirmed, and execution was thereupon issued and his property sold to satisfy the judgment, it was held in Rowsey v. Lynch (1876) 61 Mo. 560, that the undertaking of the remaining partners was not merely one of indemnity of the retiring partner, in which case a cause of action against them in favor of the latter would have accrued on the sale of his property, but was a promise to pay a debt for which he was liable and for which a right of action accrued to him on their failure to make payment, which, at least, was not at any later date than the obtaining of the judgment.

It was held also in Crofoot v. Moore (1831) 4 Vt. 204, that where the defendant agreed to pay to a third party the plaintiff's share of certain notes to a third party, which were executed by the plaintiff and another, and were due at a subsequent date, the Statute of Limitations began to run on the maturity of the notes and the failure of the defendant to keep his promise, and not when the plaintiff suffered damage by payment, the contract not being one merely of indemnity.

On the other hand, there are authorities which, at least on the particular facts, have reached a contrary result.

Thus, in Sims v. Goudelock (1852) 40 S. C. L. (6 Rich.) 100, the court regarded a contract by which one of the parties undertook to pay a debt of the other to a third person as one of indemnity, and the cause of action against the promisor and in favor of the promisee as arising only when the latter paid the debt, on failure of the former to perform the undertaking.

It was held also in Enos v. Anderson (1907) 40 Colo. 395, 15 L.R.A. (N.S.) 1087, 93 Pac. 475, that where one sold property under an agreement with the purchaser that the latter would pay an indebtedness of the seller to a third person, which the seller was subsequently compelled to pay, the Statute of Limitations did not begin to run against the seller in favor of the purchaser until the former had been compelled to pay the debt.

And in Peterson v. Abbe (1920) 234 Mass. 467, 125 N. E. 611, where a grantee of mortgaged property by the terms of the deed assumed and agreed to pay the mortgages thereon and to hold the grantor harmless, the court held that the agreement was a contract of indemnity, and that, if it were conceded that the grantor might have brought suit against the grantee at any time after the mortgages were due and remained unpaid, yet he had the option to rely on the grantee's undertaking of indemnity, and until obliged to make payment the statute did not run against him, in favor of the grantee.

So, the cause of action was said in Poe v. Dixon (1899) 60 Ohio St. 124, 71 Am. St. Rep. 713, 54 N. E. 86, to accrue at the time the grantor paid the debt, where the grantee, who had assumed, as a part of the purchase price of lands the payment of a mortgage thereon, and, having failed to comply with his agreement, the grantor was compelled to pay a deficiency of the mortgage debt arising on foreclosure, and brought an action against the grantee to recover the amount so paid. But it may be observed that in this instance no question was presented as to whether the cause of action might have accrued at a prior date than the payment, the action being barred in any event by limitations, if, as the court held, the statute applicable to actions on an implied promise was the proper one to be invoked.

Also, where the purchaser of one of two lots which were subject to a mortgage agreed to pay the mortgage debt, which he failed to do, and both lots were sold to satisfy the debt, it was held in Gregory v. Green (1911)

Tex. Civ. App., 133 S. W. 481, that the grantor's right of action against the grantee for breach of the contract did not accrue until the sale of the property, and that the claim was not, therefore, barred by the Statute of Limitations. The court said that the defendant's undertaking was to pay off the notes and leave the plaintiff's other lot clear, and that this contract was not breached in such manner that the plaintiff could maintain an action against the defendant (the grantee) thereon, until the trus

[blocks in formation]

And where land subject to a vendor's lien was conveyed to an association, which in its purchase assumed payment of the vendor's lien note, it was held in Bexar Bldg. & L. Asso. v. Newman (1893) Tex. Civ. App. 25 S. W. 461, that no cause of action against the association and in favor of the grantor arose, until the latter had suffered damages by reason of the nonpayment of the note by the association, and that in this instance the statute had not run in favor of the grantee.

The annotation does not include cases not involving the question of the Statute of Limitations, but presenting the question merely of the necessity of payment before recovery by a debtor against one who has assumed or agreed to pay the indebtedness, but has failed to do so. See, for example, Meyer v. Parsons (1900) 129 Cal. 653, 62 Pac. 216; Thomas v. Richards (1906) 124 Ga. 942, 53 S. E. 400; Stokes v. Robertson (1915) 143 Ga. 721, 85 S. E. 895; Trice v. Yoeman (1898) 8 Kan. App. 537, 54 Pac. 288; Hyde v. Kirkpatrick (1915) 78 Or. 466, 153 Pac. 41, 488; Dayton v. Gunnison (1848) 9 Pa. 347.

[blocks in formation]

R. E. H.

Bills and notes liability of one cashing check on forged indorsement. 1. One cashing a check on a forged indorsement and collecting it from the drawee must account to the true owner for the money received. [See note on this question beginning on page 1068.]

[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small]

APPEAL by plaintiff from a judgment of the Circuit Court for Jefferson County (Aird, J.) in favor of defendants in an action brought to recover the proceeds of a check cashed on a forged indorsement and collected by defendants from the drawee bank. Reversed.

The facts are stated in the opinion of the court.

Mr. William Henry Beatty, Jr., for appellant.

Messrs. Leader & Ullman and David R. Solomon for appellee.

judgment for defendants, after which this appeal.

Reason why the judgment should be sustained is expressed in several

Sayre, J., delivered the opinion of forms, but may be fairly stated as the court:

The Illinois Central Railroad Company in its office in Chicago prepared a check on a bank in St. Louis, payable to appellant, and forwarded it to its disbursing agent at Birmingham to be delivered to appellant in payment for services performed by him for the company. In some way unknown to the company or its employee, appellant, but probably by larceny or fraudulent impersonation of the payee, plaintiff, the check fell into the hands of a stranger, an impostor, who forged appellant's indorsement, and passed the check to appellees in payment for merchandise. Appellees collected the money from the bank in St. Louis, and appellant sued appellees in common assumpsit for money had and received. The trial court gave

follows: Without delivery of the check to appellant or his agent, appellant acquired no title, and cannot maintain his action.

Assumpsit-
favored by

courts.

Assumpsit is an action of an equitable character, liberal in form, and greatly favored by the courts as a remedy. Westmoreland v. Davis, 1 Ala. 299. No agreement is necessary; assumpsit will lie wherever the circumstances are such that the law, ex

debito justitiæ, will when Hes.
imply a promise.

Nor is any privity in fact between
the parties neces-
sary. Where one privity.
man has money

-necessity of

which ex equo et bono belongs to another, if there be no contract modifying the general liability, the

« SebelumnyaLanjutkan »