Imagens das páginas

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 transfer of membership, and under such cir- of its own making, were not allowable. cumstances the retention and use of the roster is without special significance.

In short, our conclusion is that the intent to form a new corporation is clearly shown, that in carrying such intent into execution no fraud was committed, and that plaintiff's bill was therefore properly dismissed.

After the introduction of evidence in the court below, the plaintiff asked for and was refused leave to file an amendment to her

Counsel argue with much earnestness that the new corporation, being devoted to the same purposes and to the same faith as the first one, should be held to be the same legal entity under another name, and bound by law as well as by the principles of common honesty to pay the debts of its pred-petition seeking relief on the ground that the old corporation was a mere trustee for the benefit of the membership, and that the new corporation was but the successor in the same trust. Counsel have argued this proposition, but we think the issues are not broad enough to cover it, nor does it seem to have been tried or passed upon by the district court. The granting of leave to amend at that stage of the case, setting up a new and distinct issue, was addressed to the discretion of the court, and the refusal of the request is not an error requiring a reversal.

The conclusion of the District Court upon the merits is right, and is affirmed.

ecessor. They further say that, "if a new organization had been effected for the purpose of maintaining the doctrines of the Baptist or any other church, and the membership had allied themselves with it, we should have an entirely different proposition." If, in fact, the membership were legally or morally bound to the plaintiff for the payment of this debt, it is not easy to understand just how a change of denominational lines or a merger into the "Baptist or any other church" would serve to cancel the obligation. Men and women cannot rid themselves of a debt in law or in honor by a change of church relations. 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 for exists. As already suggested, the member of the church is never under any legal obligation for the payment of its corporate debts, and his only moral obligation is to contribute of his means and of his influence to the extent of his ability to meet the just demands upon that organization so long as he is a member of it. When he has done all which his own enlightened conscience indicates to be his duty, or when, for any reason which satisfies himself, he ceases to be a member and refuses further assistance, neither court, creditor, nor counsel is entitled to arraign him as a recreant. He who gives credit to a church organization knows that the only source to which he is entitled to look for payment is the property or assets of which the corporation is owner, and to the voluntary offerings or gifts of the members and friends who may be moved or persuaded to contribute to that purpose. If the people, for any reason, will not contribute to meet his demand, but will help build up another organization, he suffers no legal wrong. In this instance the church property had been lost. The membership was under no obligation to purchase it simply to see it sold on the plaintiff's judgment. They later cases of Krueger v. Krueger, 7 L. R. A.

(May 6, 1905.)

NOTE. As to what acknowledgment of debt, or promise to pay, is sufficient to remove bar of statute of limitations, see also, in this series, note to Opp v. Wack, 5 L. R. A. 743; and the

I could have abandoned all further effort to maintain a church organization of any kind without incurring any liability or exposing

72: Kerper v. Wood, 15 L. R. A. 656; Braithwaite v. Harvey, 27 L. R. A. 101; Slaughter's Succession, 58 L. R. A. 408; and cases in note to Trimble v. Rudy, 53 L. R. A. 353.



James McGRATH and Wife.


1. Giving a note for interest upon a larger note already barred by the statute of limitations, which does not mention or in any way refer to the earlier note, does not revive it under a statute providing that causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid, or by a like new promise to pay the same.


A note given for interest on another note which is secured by mortgage is itself so secured, and the mortgage may be foreclosed to satisfy it, although the prior note is barred by the statute of limitations.

3. A note for principal, and one for in

terest, signed by the same maker and secured by the same mortgage, may be enforced in one action.


ROSS-APPEALS from a judgment of the | Harrisson, 33 Miss. 41; Stout v. Marshall, 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. note was revived by a note given for interest, and defendants appealing from so much as permitted a foreclosure to satisfy the interest note. Affirmed on both appeals.

& D. R. Co. 99 Iowa, 357, 68 N. W. 724. A statement in writing by a debtor that there is a specific amount due is not such an admission or acknowledgment of the balance of the claim over such amount as will take it out of the statute.

The facts are stated in the opinion. Messrs. Hurd, Lenehan, & Kiesel, for plaintiff:

The giving of a note to secure the ment of interest accrued on a note previously given is a sufficient acknowledgment of the existence of continued indebtedness upon the latter.

Porter v. Chicago, I. & D. R. Co. 99 Iowa, 357, 68 N. W. 724; Hale v. Wilson, 70 Iowa, pay-311, 30 N. W. 739.

Angell, Limitations of Actions, 5th ed. p. 251; Wood, Limitation of Actions, 2d ed. pp. 271, 272, 301, 302; 19 Am. & Eng. Enc. Law, 2d ed. p. 327, and notes; Lyman v. Warner, 51 C. C. A. 73, 113 Fed. 87; Kelly v. Leachman, 3 Idaho, 629, 33 Pac. 44; Pracht v. McNee, 40 Kan. 1, 18 Pac.


There was no misjoinder of parties or causes of action.

The mortgage securing the original note was not the cause of action. The mortgage was a mere incident of the debt.

Crow v. Vance, 4 Iowa, 434; Vandercook v. Baker, 48 Iowa, 199.

The mortgage given to secure the original note became security for the second note as part of the indebtedness.

Chambers v. Garland, 3 G. Greene, 322; Parsons v. Carey, 28 Iowa, 431; Oakson v. Beach, 36 Iowa, 171; Carpenter v. District Twp. 58 Iowa, 335, 12 N. W. 280; Hale v. Wilson, 70 Iowa, 311, 30 N. W. 739; Law rence v. Baker, 44 Hun, 582; Davidson v.

Weaver, J., delivered the opinion of the court:

It was competent to establish by parol testimony the identity of the sum embodied in the note given for interest with the interest due upon the pre-existing debt, and that it was given for that debt.

91 N. W. 894.

Kelly v. Leachman, 3 Idaho, 629, 33 Pac. 44; Harrison v. Dayries, 23 La. Ann. 216; Tilden v. Morrison, 33 La. Ann. 1068; Kincaid v. Archibald, 73 N. Y. 189; Miller v. Beardsley, 81 Iowa, 720, 45 N. W. 756; First Nat. Bank v. Woodman, 93 Iowa, 668, 57 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, above mentioned. Judgment is asked for the unpaid balance on both notes, and foreclosure is prayed of a mortgage alleged to have been given by James McGrath and his wife, Ann McGrath, at the date of the first note, to secure its payment. The defendants demurred to each count of the petition on the ground that the allegations thereof show the debt sued upon to be barred by the statute of limitations, and for the further reason that the pleading shows a misjoiner of causes of action and of parties, and because the two counts are inconsistent and contradictory. The district court sustained the demurrer to the first count of the petition, and overruled it as

Port v. Robbins, 35 Iowa, 208; Fetes v. O'Laughlin, 62 Iowa, 532, 17 N. W. 764; Cook v. Gilchrist, 82 Iowa, 277, 48 N. W. 84.

Messrs. McCarthy, Kenline, & Roedell, for defendants:

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 without further pleading, the court dismissed plaintiff's action upon the first-mentioned promissory note, and entered judgment in his favor for the amount of the smaller note and for a foreclosure of the mortgage. Both parties appeal, but the

The petition, which was filed December 9, 1903, declares upon two promissory notes, and seeks the foreclosure of a mortgage, and is stated in two counts. In the first count it is alleged that on June 29, 1888, the defendant James McGrath made and delivered to plaintiff's assignor his promissory note for $2,250, payable five years after date, with interest at 7 per cent per annum, which note is now owned by the plaintiff, and is due and unpaid. In the same count plaintiff further alleges that on June 30, 1902, the defendant James McGrath made and delivered to plaintiff another promissory note in writing for $28.75, which note, it is further alleged, was given for interest accrued on the note first described, and the instrument is set out in said first count for the purpose of showing an admission in writing that the principal debt was then un

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 of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt which the party is liable and willing to pay. Any other course would open all the

The one question presented is whether the making and delivering of the second note, when aided by parol evidence that it was given for unpaid interest on the first note, is such a written admission of the debt evidenced by the latter as will operate to re- | mischiefs against which the statute was intended to guard innocent persons, and expose them to dangers of being entrapped in careless conversations and betrayed by perjuries." See also Bell v. Morrison, 1 Pet. 362, 7 L. ed. 179; Smith v. Fly, 24 Tex. 353, 76 Am. Dec. 109; Shepherd v. Thompson, 122 U. S. 236, 30 L. ed. 1157, 7 Sup. Ct. Rep. 1229; Kensington Bank v. Patton, 14 Pa. 481, 53 Am. Dec. 564; Macrum v. Marshall, 129 Pa. 506, 15 Am. St. Rep. 730; 18 Atl. 640; Pierce v. Merrill, 128 Cal. 473, 79 Am. St. Rep. 63, 61 Pac. 67. It is an accepted doctrine that an acknowledgment of the existence of a debt is allowed to remove the bar of the statute, because such acknowledgment or admission carries with it an implied promise to pay. For that reason the acknowledgment must be express, clear, and direct, for it will not do to infer or imply the acknowledgment, and therefrom imply the promise to pay; thus piling implication upon implication. But this is just what must be done in order to sustain the position taken by the appellant. Moreover, the implication which he asks the court to indulge in cannot be drawn from the writing alone, but from the writing and other alleged facts which he proposes to establish by parol. The note itself contains not a word or suggestion recognizing the existence of any other obligation from the maker to the payee, and this gap it is proposed to bridge by parol proof that the consideration of the written promise was interest earned or accrued on the debt represented by the other note. But when all this has been done the acknowledgment relied upon is still a matter of implication, and is in no sense of the word an acknowledgment in writing of the existence of any debt save the sum of $28.75, which he promises to pay. If the defendant, in addition to his written promise to pay said sum, had added thereto by way of explanation the words "interest on my note now held by said payee," this would have been an acknowledgment that appellant held an unpaid note against him, and parol testimony would have been competent to point out and identify the note to which reference was made. Penley v. Waterhouse, 3 Iowa, 418. By so doing we simply identify the subject-matter to which the acknowledgment or promise applied. We add nothing whatever to enlarge or extend the clear meaning and import of the writing which the defendant has subscribed.

vive the right of action thereon and prevent the interposition of the statute of limitations. The suit was confessedly begun more than ten years after a right of action had accrued upon the first note, and it is therefore barred unless we give the second note the effect claimed for it by the appellant. Code, § 3456, reads as follows: "Causes of action founded on contract are revived by an admission in writing signed by the party to be charged, that the debt is unpaid, or by a like new promise to pay the same." It is manifest that the note for $28.75 described in the petition is not a promise in writing, signed by the defendant, to pay the note for $2,250. Can it be construed as a written admission of the continued existence of the debt represented by the larger note? Counsel for appellant have called our attention to several cases decided in other states which give some color of support to their contention that this question must be answered in the affirmative. There is a wide variance, however, among the courts of the several states in the strictness with which statutes as to the revivor of causes of action by written promises or acknowledgments are interpreted and applied. Some cases, especially those of an earlier date, seem to proceed upon the theory that the defense of the statute of limitations is not meritorious and that all doubts are to be solved in favor of the creditor; others have adopted the view that the statute is one of repose, and that the cause of action, once barred, ought not to be revived unless the plaintiff bring this case within the letter and spirit of the provisions permitting such revivor. Moreover, the statutes of the states creating a time limit upon the right to sue, and providing for the revival under some circumstances of a right once barred, are by no means uniform, and the decisions based thereon are ordinarily without decisive value as authority outside of the jurisdiction in which they have been announced. Referring to this statute, this court has already said: "We have found no statute like ours, and the cases in other states therefore give but little aid." Parsons v. Carey, 28 Iowa, 436. The prevailing tendency seems to be to permit a revivor by acknowledgment of the debt only where the writing relied upon is clear, explicit, and unequivocal in its terms. Says the Supreme Court of the United States: "If there be no express


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 Iowa, 312, 30 N. W. 739. As bearing to some extent upon the same general proposition here discussed, see also, Lehman v. Mahier, 34 La. Ann. 319; Trainer v. Sey

None of the cases cited by the appellant from this court go farther in recognizing the competency of parol testimony than we have above indicated. In Miller v. Beardsley, 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 payThe acknowledgment relied upon in Campment 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; HarrenIn 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 other letters stating that the writer hoped to be "able soon to pay the interest, . . . and, if possible, to pay the principal." In each of these cases it will be readily seen there is a clear and express reference by the defendant, in writing, to the existence of an unpaid indebtedness, the obligation of which is acknowledged by him; and in each case parol evidence was held admissible to identify the particular note or other form of indebtedness thus acknowledged. Beyond this well-established rule, we have never gone, nor can we do so without disregarding the statute. In Wise v. Adair, 50 Iowa, 104, we said, with reference to an alleged written acknowledgment: "We should not extend the defendant's liability beyond what he admitted in writing." In other words, it is not competent to add by parol anything or any amount to the liability there admitted. In Nelson v. Hanson,


[ocr errors]

If, then, a partial payment is to be no longer construed as an acknowledgment of the debt or promise to pay it, it is difficult to frame the statement of any good reason for giving such effect to a mere promise to make a partial payment. The Hale Case, 70 Iowa, 312, 30 N. W. 739, differs but little in principle from the one before us. There the defendant, the maker of a promissory note, made a payment to the holder, and himself wrote and signed an indorsement thereof upon the note as follows: "Paid on the within note forty dollars, John Wilson." This we held not to be an acknowledgment of the debt which would prevent or avoid the defense of the statute of limitations. We said: "The mere payment of an amount of money upon a note is not an admission that no other payments have been made, nor that any other or farther sum than that paid was due. The 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 of what was admitted to be due. By our statute the rights of the parties are fixed by the writing, and unless, by its terms, a further sum is admitted to be due, or a new promise is made, the operation of the statute is not arrested. The law does not authorize the construction of a writing stating the mere fact of the payment of a sum of money on a note to be in effect, a statement that more is due and unpaid." This principle is clearly applicable to the controversy now under consideration. The demurrer to the first count of the petition was rightfully sustained.

be true, the note thus made was secured by the mortgage, and plaintiff was entitled to a foreclosure to enforce its payment. A mortgage given to secure payment of a debt secures also the payment of the interest acruing thereon, and the mere fact that the debtor has given the mortgagee his note for such interest has no effect as a waiver or release of the lien. Barbour v. Tompkins, 31 W. Va. 410, 7 S. E. 17. There was no misjoinder of the parties or causes of action. The defendant James McGrath was the sole maker of both notes. They were both secured by the same mortgage, and it is needless to say that it was entirely proper to make his wife a party to the proceeding.

2. There is, in our judgment, no merit in the defendants' app The note there set out was not barred by the statute of limitations. The demurrer admits that it was given for interest earned on the earlier note




Harry C. SPINKS.



1. Retaining and attempting to collect overdue premium note on an insurance policy will waive a provision in the policy that nonpayment of the note at maturity will terminate the contract.

2. A provisiou of a life insurance policy that suit shall be brought on it

within a period less than that fixed by the statute of limitations is void as against public policy.

On Rehearing.

3. Failure to credit overdue premium notes on a life insurance policy in entering judgment thereon, as provided in the contract, is cause for reversal.

(Paynter, J., dissents.)

(December 9, 1904.)

PPEAL by defendant from a judgment A of the Circuit Court for Campbell County in favor of plaintiff in an action brought to recover the amount alleged to be due on a life insurance policy. Reversed.

The facts are stated in the opinion. Messrs. Robert Ramsey, W. W. Helm, and Maxwell & Ramsey, for appellant:

The judgment of the District Court is, upon both appeals, affirmed.

NOTE. As to validity of contract limitation for presenting claim or bringing suit to time shorter than period of limitations, see also cases in note to Case v. Sun Ins. Co. 8 L. R. A. 48 and the later cases, in this series, of Suggs v. Travelers' Ins. Co. 1 L. R. A. 847, and cases

The insurance terminated, without action on the part of the company, upon Spinks's failure to pay his note at maturity.

Union Cent. L. Ins. Co. v. Duvall, 20 Ky. L. Rep. 441, 46 S. W. 518; Moreland v. Union Cent. L. Ins. Co. 104 Ky. 129, 46 S. W. 516.

The agent's attempt to collect after maturity was not effective to reinstate the lapsed policy, for want of authority on his part.

Hartford Life & Annuity Ins. Co. v. Hayden, 90 Ky. 39, 13 S. W. 585; Marcus v. St. Louis Mut. L. Ins. Co. 68 N. Y. 625.

The policy terminated when the company formally canceled it and notified the insured.

The defendant is not estopped by the retention of the premium note.

Deppen v. Southern Mut. L. Ins. Co. 8 Ky. L. Rep. 57.

The one-year limitation clause in the policy was valid.

Lee v. Union Cent. L. Ins. Co. 22 Ky. L. Rep. 1712, 56 S. W. 724; Owen v. Howard Ins. Co. 87 Ky. 571, 10 S. W. 119; Kentucky Mut. Security Fund Co. v. Turner, 89 Ky. 665, 13 S. W. 104; Riddlesbarger v. Hartford F. Ins. Co. 7 Wall. 386. 19 L. ed. 257 ; 2 May, Ins. 478; 1 Wood, Limitation of Actions, 42.

in note thereto; Dwelling House Ins. Co. v. Brodie, 4 L. R. A. 458, and cases in note; Kirby v. Western U. Teleg. Co. 30 L. R. A. 612; and Western U. Teleg. Co. v. Eubank, 36 L. R. A. 711.

« AnteriorContinuar »