« AnteriorContinuar »
pears that under the rules and regulations themselves to any just demand on part of of the church a formal dismissal of its mem- plaintiff,— a result which doubtless would bers from the old organization and reception have followed if the organization of a new into the new one were not essential to a church, liable for no obligations except tho. J transfer of membership, and under such cir- of its own making, were not allowable. cumstances the retention and use of the In short, our conclusion is that the intent roster is without special significance. to form a new corporation is clearly shown,
Counsel argue with much earnestness that that in carrying such intent into execution the new corporation, being devoted to the no fraud was committed, and that plaintiff's same purposes and to the same faith as the bill was therefore properly dismissed. first one, should be held to be the same le- After the introduction of evidence in the gal entity under another name, and bound court below, the plaintiff asked for and was by law as well as by the principles of com- refused leave to file an amendment to her mon honesty to pay the debts of its pred petition seeking relief on the ground that ecessor. They further say that, “if a new the old corporation was a mere trustee for organization had been effected for the pur the benefit of the membership, and that the pose of maintaining the doctrines of the new corporation was but the successor in Baptist or any other church, and the mem- the same trust. Counsel have
gued this bership had allied themselves with it, we proposition, but we think the issues are not should have an entirely different proposi- broad enough to cover it, nor does it seem tion.” If, in fact, the membership were to have been tried or passed upon by the legally or morally bound to the plaintiff for district court. The granting of leave to the payment of this debt, it is not easy to amend at that stage of the case, setting up understand just how a change of de- a new and distinct issue, was addressed to nominational lines or a merger into the the discretion of the court, and the refusal "Baptist or any other church” would serve of the request is not an error requiring a to cancel the obligation. Men and women reversal. cannot rid themselves of a debt in law or The conclusion of the District Court upon in honor by a change of church relations. the merits is right, and is affirmed. Were we to announce otherwise, the title of interchurch migration might soon reach embarrassing proportions. But the truth is that no such obligation as counsel contends
C. E. KLEIS for exists. As already suggested, the member of the church is never under any legal
James MCGRATH and Wife. obligation for the payment of its corporate debts, and his only moral obligation is to
.......) contribute of his means and of his influence 1. Giving a note for interest upon a to the extent of his ability to meet the just larger note already barred by the demands upon that organization so long statute of limitations, which does not he is a member of it. When he has done all mention or in any way refer to the earlier which his own enlightened conscience indi
note, does not revive it under a statute procates to be his duty, or when, for any rea
viding that causes of action founded on con
tract are revived by an admission in writing, son which satisfies himself, he ceases to be
signed by the party to be charged, that the a member and refuses further assistance,
debt is unpaid, or by a like new promise to neither court, creditor, nor counsel is en- pay the same. titled to arraign him as a recreant. He who 2. A note given for interest on another gives credit to a church organization knows
note which is secured by mortgage
secured, and the mortgage that the only source to which he is entitled
may be foreclosed to satisfy it, although the to look for payment is the property or as
prior note is barred by the statute of limitasets of which the corporation is owner, and to the voluntary offerings or gifts of the 3. A note for principal, and one for inmembers and friends who may be moved or terest, signed by the same maker and sepersuaded to contribute to that purpose. If
cured by the same mortgage, may be enforced
in one action. the people, for any reason, will not contribute to meet his demand, but will help build
(May 1905.) up another organization, he suffers no legal
Note. -As to what acknowledgment of debt, wrong. In this instance the church property or promise to pay, is sufficient to remove bar of had been lost. The membership was under statute of limitations, see also, in this series, no obligation to purchase it simply to see note to Oppv. Wack, 5 L. R. A. 743; and the it sold on the plaintiff's judgment. They later cases of Krueger v. Krueger, 7 L. R. A. could have abandoned all further effor
72; Kerper v. Wood, 15 L. R. A. 656 : Braith
waite v. Harvey, 27 L. R. A. 101 ; Slaughter's maintain a church organization of any kind Succession, 58 L. R. A. 408; and cases in note without incurring any liability or exposing' to Trimble v. Rudy, 53 L. R. A. 353.
ROSS-APPEALS from a judgment of the Harrisson, 33 Miss. 41; Stout v. Marshall, C.
District Court for Dubuque County ren- 75 Iowa, 498, 39 N. W. 808; Stewart v. dered in an action brought to foreclose a McFarland, 84 Iowa, 55, 50 N. W. 221; mortgage securing payment of certain prom- Nelson v. Hanson, 92 Iowa, 359, 54 Am. St. issory notes; plaintiff appealing from so Rep. 568, 60 N. W. 655; Porter v. Chicago, much as refused to hold that the principal I. & D. R. Co. 99 Iowa, 357, 68 N. W. 724. note was revived by a note given for inter- A statement in writing by a debtor that est, and defendants appealing from so much there is a specific amount due is not such as permitted a foreclosure to satisfy the in- an admission or acknowledgment of the terest note. Affirmed on both appeals. balance of the claim over such amount as
The facts are stated in the opinion. will take it out of the statute.
Messrs. Hurd, Lenehan, & Kiesel, for Porter v. Chicago, I. & D. R. Co. 99 Iowa, plaintiff :
357, 68 N. W. 724; Hale v. Wilson, 70 Iowa, The giving of a note to secure the pay. 311, 30 N. W. 739. ment of interest accrued on a note previously given is a sufficient acknowledgment Weaver, J., delivered the opinion of of the existence of continued indebtedness the court: upon the latter.
The petition, which was filed December 9, Angell, Limitations of Actions, 5th ed. 1903, declares upon two promissory notes, p. 251; Wood, Limitation of Actions, 2d ed. and seeks the foreclosure of a mortgage, pp. 271, 272, 301, 302; 19 Am. & Eng. Enc. and is stated in two counts. In the first Law, 2d ed. p. 327, and notes; Lyman v. count it is alleged that on June 29, 1888, Warner, 51 C. C. A. 73, 113 Fed. 87; the defendant James McGrath made and deKelly v. Leachman, 3 Idaho, 629, 33 Pac. livered to plaintiff's assignor his promis44; Pracht v. McNee, 40 Kan. 1, 18 Pac. sory note for $2,250, payable five years after 925.
date, with interest at 7 per cent per annum, It was competent to establish by parol which note is now owned by the plaintiff, testimony the identity of the sum embodied and is due and unpaid. In the same count in the note given for interest with the in- plaintiff further alleges that on June 30, terest due upon the pre-existing debt, and 1902, the defendant James McGrath made that it was given for that debt.
and delivered to plaintiff another promisKelly v. Leachman, 3 Idaho, 629, 33 Pac. sory note in writing for $28.75, which note, 44; Harrison v. Dayries, 23 La. Ann. 216; it is further alleged, was given for interest Tilden v. Morrison, 33 La. Ann. 1068 ; accrued on the note first described, and the Kincaid v. Archibald, 73 N. Y. 189; Miller instrument is set out in said first count v. Beardsley, 81 Iowa, 720, 45 N. W. 756; for the purpose of showing an admission in First Nat. Bank v. Woodman, 93 Iowa, 668, writing that the principal debt was then un57 Am. St. Rep. 287, 62 N. W. 28; McCon- paid, thus avoiding the plea of the statute aughy v. Wilsey, 115 Iowa, 589, 88 N. W. of limitations thereon. The second count 1101; Campbell v. Campbell, 118 Iowa, 132, declares solely upon the note of $28.75, 91 N. W. 894.
above mentioned. Judgment is asked for There was no misjoinder of parties or the unpaid balance on both notes, and forecauses of action.
closure is prayed of a mortgage alleged to The mortgage securing the original note have been given by James McGrath and was not the cause of action. The mort- his wife, Ann McGrath, at the date of the gage was a mere incident of the debt.
first note, to secure its payment. The deCrow v. Vance, 4 Iowa, 434; Vander. fendants demurred to each count of the pecook v. Baker, 48 Iowa, 199.
tition on the ground that the allegations The mortgage given to secure the original thereof show the debt sued upon to be note became security for the second note barred by the statute of limitations, and for as part of the indebtedness.
the further reason that the pleading shows Port v. Robbins, 35 Iowa, 208; Fetes v. a misjoiner of causes of action and of parO’Laughlin, 62 Iowa, 532, 17 N. W.764; Cook ties, and because the two counts are inconv. Gilchrist, 82 Iowa, 277, 48 N. W. 84. sistent and contradictory. The district
Messrs. McCarthy, Kenline, & Roe- court sustained the demurrer to the first dell, for defendants:
count of the petition, and overruled it as The second note is insufficient to consti- to the second count. Both parties having tute a revivor of the first one.
elected to stand upon the record thus made Chambers v. Garland, 3 G. Greene, 322; without further pleading, the court disParsons v. Carey, 28 Iowa, 431; Oakson v. missed plaintiff's action upon the first-menBeach, 36 Iowa, 171; Carpenter v. District tioned promissory note, and entered judg. Twp. 58 Iowa, 335, 12 N. W. 280; Hale v. ment in his favor for the amount of the Wilson, 70 Iowa, 311, 30 N. W. 739; Law. smaller note and for a foreclosure of the rence v. Baker, 44 Hun, 582; Davidson v.'mortgage. Both parties appeal, but the
plaintiff, being first to serve notice, will be promise, but a promise is to be raised by herein denominated the appellant.
implication of law from the acknowledgment The one question presented is whether the of the party, such acknowledgment ought making and delivering of the second note, to contain an unqualified and direct admiswhen aided by parol evidence that it was sion of a previous subsisting debt which given for unpaid interest on the first note, the party is liable and willing to pay. is such a written admission of the debt evi.
Any other course would open all the denced by the latter as will operate to re- mischiefs against which the statute was invive the right action thereon and prevent tended to guard innocent persons, and expose the interposition of the statute of limita-them to dangers of being entrapped in caretions. The suit was confessedly begun more less conversations and betrayed by perthan ten years after a right of action had juries.” See also Bell v. Morrison, 1 Pet. accrued upon the first note, and it is there- 362, 7 L. ed. 179; Smith v. Fly, 24 Tex. 353, fore barred unless we give the second note 76 Am. Dec. 109; Shepherd v. Thompson, the effect claimed for it by the appellant. 122 U. S. 236, 30 L. ed. 1157, 7 Sup. Ct. Code, § 3456, reads as follows: “Causes of Rep. 1229; Kensington Bank v. Patton, 14 action founded on contract are revived by Pa. 481, 53 Am. Dec. 564; Macrum v. Maran admission in writing signed by the party shall, 129 Pa. 506, 15 Am. St. Rep. 730; 18 to be charged. that the debt is unpaid, or by Atl. 640; Pierce v. Merrill, 128 Cal. 473, 79 a like new promise to pay the same.” It is Am. St. Rep. 63, 61 Pac. 67. It is an acceptmanifest that the note for $28.75 described ed doctrine that an acknowledgment of the in the petition is not a promise in writing, existence of a debt is allowed to remove the signed by the defendant, to pay the note for bar of the statute, because such acknowledge $2,250. Can it be construed as a written ment or admission carries with it an imadmission of the continued existence of the plied promise to pay. For that reason the debt represented by the larger note? Coun- acknowledgment must be express, clear, and sel for appellant have called our attention direct, for it will not do to infer or imply to several cases decided in other states the acknowledgment, and therefrom imply which give some color of support to their the promise to pay; thus piling implication contention that this question must be an upon implication. But this is just what swered in the affirmative. There is a wide must be done in order to sustain the posivariance, however, among the courts of the tion taken by the appellant. Moreover, the several states in the strictness with which implication which he asks the court to instatutes as to the revivor of causes of ac-dulge in cannot be drawn from the writing tion by written promises or acknowledg- alone, but from the writing and other alments are interpreted and applied. Some leged facts which he proposes to establish cases, especially those of an earlier date, by parol. The note itself contains not a seem to proceed upon the theory that the word or suggestion recognizing the existdefense of the statute of limitations is not ence of any other obligation from the maker meritorious and that all doubts are to be to the payee, and this gap it is proposed to solved in favor of the creditor; others have bridge by parol proof that the consideration adopted the view that the statute is one of of the written promise was interest earned repose, and that the cause of action, once or accrued on the debt represented by the barred, ought not to be revived unless the other note. But when all this has been plaintiff bring this case within the letter done the acknowledgment relied upon is still and spirit of the provisions permitting such a matter of implication, and is in no sense revivor. Moreover, the statutes of the of the word an acknowledgment in writing states creating a time limit upon the right of the existence of any debt save the sum to sue, and providing for the revival under of $28.75, which he promises to pay. If the some circumstances of a right once barred. defendant, in addition to his written promare by no means uniform, and the decisions ise to pay said sum, had added thereto based thereon are ordinarily without deci- by way of explanation the words "interest sive value as authority outside of the juris- on my note now held by said payee," this diction in which they have been announced. would have been an acknowledgment that Referring to this statute, this court has al. appellant held an unpaid note against him, ready said: “We have found no statute like and parol testimony would have been comours, and the cases in other states there- petent to point out and identify the note fore give but little aid.” Parsons v. Carey, to which reference was made. Penley v. 28 Iowa, 436. The prevailing tendency seems Waterhouse, 3 Iowa, 418. By so doing we to be to permit a revivor by acknowledg- simply identify the subject matter to which ment of the debt only where the writing re- the acknowledgment or promise applied. lied upon is clear, explicit, and unequivocal We add nothing whatever to enlarge or exin its terms. Says the Supreme Court of tend the clear meaning and import of the the United States: "If there be no express ' writing which the defendant has subscribed.
But, as we have already noted, the writing | 92 Iowa, 356, 54 Am. St. Rep. 568, 60 N. W. before us in this case is a simple, unequiv- 655, we reviewed our earlier cases permitocal promise to pay to the plaintiff the ting the identification of the debt by parol sum of money therein mentioned. There evidence, and said: “But in all these cases is no ambiguity or uncertainty requiring the the language used by the debtor was an unaid of parol testimony for an explanation qualified admission of indebtedness either of the defendant's meaning or to identify in words or in legal effect.” The position of the subject matter of his promise. Such this court is also clearly indicated in First being the case, if we open the door for parol Nat. Bank v. Woodman, 93 Iowa, 671, 57 proof of facts and circumstances in no Am. St. Rep. 287, 62 N. W. 28, where, refermanner suggested by the writing, and from ring to language contained in certain writsuch facts and circumstances find an implied ing or letters as an acknowledgment of the acknowledgment of an existing indebtedness debt, we said: “While the letters relied on upon another and different instrument, we as containing the requisite admissions and shall, in effect, by judicial construction promises to revive the cause of action are abolish the statute by which there can be mostly those of remittances, it is not the no revivor of a demand against which the fact of payment that is relied on, but the limitation has run except by a written statements in the letters signed by the parpromise or acknowledgment subscribed by ty." See also Stout v. Marshall, 75 Iowa, the party to be charged.
498, 39 N. W. 808; Hale v. Wilson, 70 None of the cases cited by the appellant Iowa, 312, 30 N. W. 739. As bearing to from this court go farther in recognizing some extent upon the same general propothe competency of parol testimony than we sition here discussed, see also, Lehman v. have above indicated. In Miller v. Beards- Mahier, 34 La. Ann. 319; Trainer v. Sey. ley, 81 Iowa, 720, 45 N. W. 756, the defend-mour, 10 Tex. Civ. App. 674, 32 S. W. 154; ant wrote to the plaintiff stating that he Boothby v. Bennett, 73 Me. 117; Eckford v. had paid plaintiff's agent the interest on Evans, 56 Miss. 18; Wells v. Hill, 118 N. C. $9,000, referred to interest not yet due and 900, 24 S. E. 771; Canton Female Academy to a note or notes which he “had not yet v. Gilman, 55 Miss. 148; Gartrell v. Linn, paid." In McConaughy v. Wilsey, 115 79 Ga. 700, 4 S. E. 918; Leonard v. HughIowa, 589, 88 N. W. 1101, the defendant lett, 41 Md. 380; Davis v. Davis, 98 Me. wrote, making express reference to a note, 135, 56 Atl. 588. Under our statute the and promising to “try and pay it this fall.” common-law rule by which the partial pay. The acknowledgment relied upon in Camp-ment of a claim operates to set the period bell v. Campbell, 118 Iowa, 131, 91 N. W. of limitation running anew has been abro894, was contained in a letter containing a gated, and this court has never been inremittance, of which the writer says, “I clined to indulge in overrefined construction think it pays the interest on my note to to defeat the legislative will thus expressed. February, 1892,” a date then in the future. Parsons v. Carey, 28 Iowa, 431; Harren. In First Nat. Bank v. Woodman, 93 Iowa, court v. Merritt, 29 Iowa, 71; Roberts v. 671, 57 Am. St. Rep. 287, 62 N. W. 28, the Hammon, 29 Iowa, 128; Hale v. Wilson, 70 writing was also contained in letters remit- Iowa, 312, 30 N. W. 739. ting money to “pay interest on notes," and If, then, a partial payment is to be no other letters stating that the writer hoped longer construed as an acknowledgment of to be “able soon to pay the interest, ... and, the debt or promise to pay it, it is difficult ... if possible, to pay the principal.” In to frame the statement of any good reason each of these cases it will be readily seen for giving such effect to a mere promise to there is a clear and express referepce by the make a partial payment. The Hale Case, defendant, in writing, to the existence of an 70 Iowa, 312, 30 N. W. 739, differs but litunpaid indebtedness, the obligation of tle in principle from the one before us. which is acknowledged by him; and in each There the defendant, the maker of a promcase parol evidence was held admissible to issory note, made a payment to the holder, identify the particular note or other form and himself wrote and signed an indorseof indebtedness thus acknowledged. Be- ment thereof upon the note as follows: yond this well-established rule, we have “Paid on the within note forty dollars, never gone, nor can we do so without dis- John Wilson.” This we held not to be an regarding the statute. In Wise v. Adair, acknowledgment of the debt which would 50 Iowa, 104, we said, with reference to an prevent or avoid the defense of the statute alleged written acknowledgment: “We of limitations. We said: “The mere payshould not extend the defendant's liability ment of an amount of money upon a note is beyond what he admitted in writing.” In not an admission that no other payments other words, it is not competent to add by have been made, nor that any other or farparol anything or any amount to the liabil-ther sum than that paid was due. The ity there admitted. In Nelson v. Hanson, 'rule for which plaintiff contends obtained
at a time when it was competent to prove which was secured by the mortgage. If this by parol that the payment was but a part be true, the note thus made was secured by of what was admitted to be due. By our the mortgage, and plaintiff was entitled to a statute the rights of the parties are fixed foreclosure to enforce its payment. A by the writing, and unless, by its terms, a mortgage given to secure payment of a debt further sum is admitted to be due, or a new secures also the payment of the interest acpromise is made, the operation of the stat cruing thereon, and the mere fact that the ute is not arrested. The law does not au- debtor has given the mortgagee his note for thorize the construction of a writing stat- such interest has no effect as a waiver or ing the mere fact of the payment of a sum release of the lien. Barbour v. Tompkins, of money on a note to be in effect, a state- 31 W. Va. 410, 7 S. E. 17. There was no ment that more is due and unpaid.” This misjoinder of the parties or causes of aeprinciple is clearly applicable to the con- tion. The defendant James McGrath was troversy now under consideration. The de- the sole maker of both notes. They were murrer to the first count of the petition both secured by the same mortgage, and it was rightfully sustained.
is needless to say that it was entirely prop2. There is, in our judgment, no merit in er to make his wife a party to the proceedthe defendants' appeal. The note there set ing. out was not barred by the statute of limita The judgment of the District Court is, tions. The demurrer admits that it was upon both appeals, affirmed. given for interest earned on the earlier note
KENTUCKY COURT OF APPEALS.
UNION CENTRAL LIFE INSURANCE The insurance terminated, without action COMPANY, Appt.,
on the part of the company, upon Spinks's v.
failure to pay his note at maturity. Harry C. SPINKS.
Union Cent. L. Ins. Co. v. Duvall, 20 Ky.
L. Rep. 441, 46 S. W. 518; Moreland v. (..... . Ky.........)
Union Cent. L. Ins. Co. 104 Ky. 129, 46 S.
W. 516. 1. Retaining and attempting to collect overdue premium note on
The agent's attempt to collect after surance policy will waive a provision in the maturity was not effective to reinstate the policy that nonpayment of the note at ma- lapsed policy, for want of authority on his turity will terminate the contract.
part. 2. A provisiou of a life insurance policy that suit shall be brought on it
Hartford Life & Annuity Ins. Co. v. Haywithin a period less than that fixed by the den, 90 Ky. 39, 13 S. W. 585; Marcus v. St. statute of limitations is void as against pub- | Louis Mut. L. Ins. Co. 68 N. Y. 625. lic policy.
The policy terminated when the company On Rehearing.
formally canceled it and notified the in8. Failure to credit overdue premium
sured. notes on a life insurance policy in entering judgment thereon, as provided in the con
The defendant is not estopped by the retract, is cause for reversal.
tention of the premium note.
Deppen v. Southern Jut. L. Ins. Co. 8 Ky. (Paynter, J., dissents.)
L. Rep. 57.
The one-year limitation clause in the (December 9, 1904.)
policy was valid.
Lee v. Union Cent. L. Ins. Co. 22 Ky. L. of the Circuit Court for Campbell Coun- Rep. 1712, 56 S. W. 724; Owen v. Howard ty in favor of plaintiff in an action brought Ins. Co. 87 Ky. 571, 10 S. W. 119; kentucky to recover the amount alleged to be due on
Mut. Security Fund Co. v. Turner, 89 Ky. a life insurance policy. Reversed.
665, 13 S. W. 104; Riddlesbarger v. HartThe facts are stated in the opinion.
ford F. Ins. Co. 7 Wall. 386, 19 L. ed. 257; Messrs. Robert Ramsey, W. W. Helm, 2 May, Ins. 478; 1 Wood, Limitation of Acand Maxwell & Ramsey, for appellant: tions, 42.
NOTE. As to validity of contract limitation in note thereto; Dwelling House Ins. Co. v. for presenting claim or bringing suit to time Brodie, 4 L. R. A. 458, and cases in note: shorter than period of limitations, see also Kirby v. Western U. Teleg. Co. 30 L. R. A. cases in note to Case v. Sun Ins. Co. 8 L. R. A. 612 ; and Western U. Teleg. Co. v. Eubank, 36 48; and the later cases, in this series, of Suggs | L. R. A. 711. v. Travelers' Ins. Co. 1 L. R. A, 847, and cases
A PPEAL Oby. defendant from man bjud cement