Miles v. Linnell

97 Mass. 298

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1867
• Status: Published

Opinion

Chapman, J.

The note of the defendant and Clark to the plaintiff and E. W. Miles was dated May 1,1855; but was not in fact given till about the middle of the month. It became a contract by delivering it to the payees, and the cause of action accrued at the time of the delivery. The statute of limitations begins to run from the time when the cause of action accrued, and not from the date of the instrument. Chit. Bills, 609.

But this point does not appear to be material. The statute of limitations does not extinguish a debt; it only bars the remedy by action; and after the time has elapsed, the right of action may be renewed by an acknowledgment of the debt or a promise to pay it without any new consideration. Chit. Con. (10th Am. ed.) 907. Our statute requires that the acknowledgment or promise shall be in writing. And there are many cases where it has been held that if the new promise to pay is conditional, the plaintiff must prove that the condition has- been fulfilled. One of the recent cases is Bidwell v. Rogers, 10 Allen, 438.

In the present case the defendant, by his agreement in writing, signed by him, guaranteed the payment of the note, provided the plaintiff would use due diligence in efforts to collect the amount due from the principal. The principal then lived in Louisville, Kentucky, and had lived there several years; and at that time (May 3,1861) the state of the country was such that it was difficult to collect debts in that place. It appears also that the principal was poor and had been so for some time. The plaintiff sent the note to a clergyman in Louisville for collection, to be placed, with a letter of instructions, in the hands of an attorney. He was referred to this clergyman by the defendant, and as the defendant does not deny that he saw the letter of instructions and approved of it, but merely denies any recollection of it, the jury were authorized to believe that the action of the plaintiff was approved by the defendant. It does not appear that the plaintiff could have done anything more than was done by the attorney; and from the undisputed evidence the jury were authorized to find that the plaintiff used due diligence, and that no reasonable efforts that could have been made to collect the debt would" have been successful. The condition having thus been complied with, the defendant is liable to pay the note. No authority has been cited to sustain the point that the fact of his being a surety makes any difference in this respect. Exceptions overruled.