Perkins v. Guy

55 Miss. 153

• Court: Mississippi Supreme Court
• Decided: October 15, 1877
• Status: Published

Opinion

Simrall, C. J.,

delivered the opinion of the court.

The question most elaborately discussed by counsel is • whether the statute of limitations of the ‘ ‘ loci contractus ’ ’ can be pleaded in bar in a foreign jurisdiction, where both parties ■ were resident in the loci contractus during the whole statu- • tory time, so as to have made the bar complete there.

The averments in the plea are to the effect that both Mrs. Dawson, the defendant’s intestate, and Miss Guy were ■ residents of the state of Tennessee for eight years after the • cause of action accrued, and that six years was the time allowed by the law of that state for bringing this suit.

It might be supposed that the active commercial intercourse between the inhabitants of different countries for the last century, and especially between the people of these American' states, would have given rise to almost every con- • ceivable question growing out of personal contracts made in one country, and the enforcement of them in another; and. ■ that much which might have been at one time controverted had been put at rest.

Certainly the principle has been established, beyond the reach of controversy, that the validity and interpretation of personal contracts are to be tested by the “ lex loci contractus,” and not by the lex fori, if that be in a foreign jurisdiction. The only exception to the rule is that no country will enforce a contract, made abroad, which is injurious to its own rights or policy, or hurtful to its citizens, or which is offensive to public morals. Le Roy v. Crowninshield, 2 Mason, 157; Bulger v. Roche, 11 Pick. 36.

Another principle, to which there is no exception, is that remedies on contracts must be pursued according to the law of ■ the forum where the action is brought, and not by the law of the country where the contract was made. This principle is of such universal acceptation, and is so convenient and necessary to national and inter-state commerce, that it may -properly be said to have found a place in the public law.

If statutes of limitations belong to the remedy, and have no relation to the validity and obligation of contracts, then the : statute of the forum, and not of the place of the contract, would prevail, unless the law of the forum had otherwise • declared.

The Federal Constitution inhibits the states from passing .any law impairing the obligation of contracts. If the statute ■ of limitations in force at the time a contract is made is in any proper sense a part of its obligation, then the state cannot shorten the time, for that (on tMs theory) would be an interference with the right of the creditor, springing out of the contract. But nothing is better settled in American jurisprudence than that the states may, at their discretion; alter .and change statutes of limitations. Their right so to do rests on the ground that such legislation does not trench upon, or impair, the right of the creditor, or the obligation of the ■ debtor, but is remedial.

The rule at common law, well established in the courts long before tbe Revolution, was that tbe time of tbe limitation of actions on contracts depends on the law of the forum, and not on the law of the state or country where the contract was made. In 1705 the lord keeper applied the English statute to a judgment which had been recovered in France. Duplex v. De Rosen, 2 Vern. 540.

In an early case at law, Williams v. Jones, 13 East, 439, Lord Ellenborough made the distinction, which has ever since been followed in England.

According to the law received in the foreign court, there was •only an extinction of the remedy, “but there is no law or •authority that where there is an extinction of the remedy only in the foreign court, that shall operate, by comity, as an extinction of the remedy here also.” “If it go to the extinction of the right itself, the case may be different.”

In one of the earliest cases in New York, the defendant pleaded in bar the statute of New York, which was six years ; the plaintiff replied that the contract was made in Connecticut, where the statute was seventeen years. The court applied the New York statute.

In the case of Le Roy v. Crowninshield, already cited, Judge Story stated, as the inclination of his mind, that where the remedy was completely barred by the “ lex loci contractus, there was a virtual extinction of the right, which ought to'be recognized in every other tribunal.” But many years afterwards, perhaps after fuller investigation, and more mature consideration, the same eminent jurist, in the Conflict of Laws, said: “ That, as the law of prescription of a particular oountry, even where the contract is made in such country, forms no part of the contract itself, but merely acts upon it ex post facto, in case of a suit, it cannot properly be deemed a right stipulated for, or included in, the contract.” Mr. Angelí, in his work on Limitations, page 63, section 66, says : “ The -doctrine of the common law, beyond all doubt, is firmly fixed, that the limitation prescribed by the lex fori, in respect of remedies, must prevail in all cases of personal actions. In an elaborate note appended to the report of Andrews v. Herriott, 4 Cow. 510, is a copious collection of tbe authorities on the subject.

The case of Townsend v. Jamison, 9 How. 407, presented the precise question whether, a cause of action haying accrued in Mississippi, and been completely barred there, ‘the bar of the Mississippi statute might not be pleaded in a court of Louisiana; and the decision was that it could not. That is the settled rule in the Federal judiciary. McMoyle v. Cohen, 18 Pet. 312; McCluny v. Silliman, 3 Pet. 276; Hawkins v. Barney, 5 Pet. 457; Bank of United States v. Donnally, 8 Pet. 361. In the course of the judgment in Townsend v. Jamison, supra, the learned judge said: “It has become a fixed rule of the jus gentium privatum, unalterable, in our opinion, either in the states of the United States, or England, except by legislative enactment. ’ ’ In that emphatic declaration we concur.

. Whether it would not be wise to alter the rule where both parties were resident in another state, whose statute had barred the remedy, is a subject worthy, perhaps, of the serious consideration of the Legislature.

We have been referred by counsel to several cases which are claimed to have made a new departure on this subject, adopting the suggestion made by Judge Story in the case already referred to, reported in 2 Mason.

Of this class is Brown v. Parker, 28 Wis. 30, 31, which refers to the antecedent cases, and states that the construction which had been put on the statute of that state, was : “ That after the time had expired, the contract or obligation had ceased to exist, and was no longer of any significance or force.”

The statute of Maryland was : “ That after twelve years, * * * no bill, bond, judgment, etc., shall be good, or pleadable, or admitted in evidence.”

The effect of such statutes in causes of action sued on in another state was presented in Baker v. Stonebaker, 36 Mo. 338, 349, and it was held that after the twelve years had expired in Maryland, after the rendition of the judgment, no-recovery could be had upon it in Missouri, because the Maryland statute did not merely affect the remedy, but it absolutely extinguished the debt. It operated on the right. Statutes of' similar import have been enacted in several of the states.

Where the right has been extinguished, by the lapse of time,, in another state where the parties were resident, we would: undoubtedly give effect to the statute declaring that consequence, in any suit brought in our jurisdiction grounded on the-contract.

We pass, now, to consider whether the statute of Tennessee.affects the right, or relates merely to the remedy.

The eases referred to in 1 Heisk. 280, 5 Heisk. 353, 6 Heisk. 320, and 7 Heisk. 315, declare the same rule laid down in 1 How. (Miss.), that where the bar of the statute has become complete, it is ultra vires either of a constitutional convention or of the Legislature to tate away a right to mate that defense,, already vested. Very recently the Supreme Court of Tennessee, in Woocllie v. Towles and Wife, reported in Memphis Law Journal of January, 1878, maturely considered the effect of the statute of that state, reviewing the antecedent cases. On the one side the proposition was pressed on the court that the-expiration of the statutory time extinguished the debt, and that a subsequent promise was a new cause of action, which must be counted on in the declaration. On the other side it was contended that the new promise was but a waiver of the statute, and that the action should be brought on the original, contract.

The reasoning of the court, grounded on the adjudications-in that state, was that the statute did not touch the right, but: operated on the remedy. The conclusion is thus stated: "The effect [of the new promise] is to restore the remedy upon'the original debt, and that this original debt is the foundation of' the action, and the basis of the judgment.

We are of opinion, therefore, that the statute of Tennessee, set up in the plea, operated alone on the remedy, and did not have the effect claimed for it in the plea, of extinguishing the right. But it is said that, inasmuch as the plea averred that was the effect of the statute, the plaintiff by his demurrer admitted its truth.

A demurrer admits all matters of fact that are well pleaded, but it does not admit conclusions of law stated by the pleader. These are his own deductions or interpretations of the law, and may be erroneous. It is the business of the court to declare the law, which necessarily implies the duty of construing and interpreting statutes. By special statute of this state, the courts must judicially know the law of the other states, and need not be informed by averment or proof.

An attorney at law- is not permitted to disclose opinions, statements, or communications made to him by his client touching matters the subject of professional advice and consultations. It is the privilege , of the client that the seal of confidence and. secrecy should not be broken without his consent. Nor does the privilege terminate with the particular business which established the relation. Whether the attorney accepts the employment or not, disclosures made to him expository of the business about which his services are sought are as much protected if the attorney declines the engagement as if he accepted. Crider v. Garland, 11 Smed. & M. 138. Justice, and the protection of private rights, demand the strictest confidence and privacy in the relation.

But does the testimony delivered by Colonel Walter on the trial come within the rule ? These were the attending circumstances : Miss Guy applied to the witness to take proper proceedings to present and prosecute before a military court a claim to some cotton bales, said to have been assigned to her by Mrs. Dawson. At Colonel Walter’s suggestion, Mrs. Dawson and Miss Guy called at his office the next day, for the purpose of mailing such explanations about the cotton as would enable him to prepare the claim in proper shape. In this interview Mrs. Dawson stated (in the presence of Miss Guy) to Colonel Walter that she owed Miss Guy $5,000, money borrowed, and had transferred to her fourteen bales of cotton, which had been seized by military officers. Mrs. Dawson joined with Miss Guy in her petition, and, because of her superior business qualifications, took the management of the •contestation, and paid him his fee at its termination. Witness stated that when Mrs. Dawson made the statement about the borrowed money, she was not his client.

One of the issues submitted to the jury at the opening of the trial, and, indeed, throughout the investigation of the case on its facts, was whether Mrs. Dawson owed this debt •of $5,000 — whether really she had ever borrowed the money from Miss Guy. There was also issue on the' plea of payment, and the replication to the statute of limitations. After the testimony had been adduced on both sides, and the case •closed as to that, the defendant Avithdrew the plea of non assumpsit, leaving onty the issue on the plea of payment, and the replication to the statute of limitations, to be responded to by the jury.

Counsel on either side did not address to us any argument •on the question of the effect of AvithdraAving the general issue on the rulings of the court, either in the admission or the rejection of testimony applicable to that issue. If the only defenses pleaded in the first instance had been payment and the statute of limitations, it would have been impertinent and irrelevant to have offered testimony to prove the indebtedness. •Such pleas contain the implied admission that the intestate •once OAved the debt, and that her personal representative would have a right to recover in this action, unless it has been paid, or barred by the statute of limitations. Such matters being affirmative, and posterior in time to the creation of the Indebtedness, the burden of proof is on the defendant. ■Strictly, they “ confess” that the cause of action, as laid in the declaration, once existed, but they ‘ obviate ” it by “ new ’ ’ substantive “ matter.”

Such pleas “confess” on the record the existence of the debt, and, unless payment is proved, or the statute has barred the suit, the plaintiff shall have the verdict, by reason of the- “ implied confession.”

When the defendant withdrew the plea of non assumpsit,. there necessarily fell with it all the testimony that had been-admitted under it. The plaintiff got no advantage from any evidence tending to prove the promise, and the defendant-deliberately abandoned all benefit he might have insisted upon before the jury from evidence conducing to prove the original non-existence of the indebtedness. However weak may have-been the plaintiff’s case, the withdrawal of the plea was a conclusive “confession” that the case stated in the declaration was true, unless obviated by the affirmative pleas. The withdrawal of all the pleas, after the testimony has been put-before the jury, would be an abandonment of all the defenses, and the jury should be discharged, and judgment be rendered by nil debet. If one plea is withdrawn in such circumstances, it is a conclusive admission that further opposition to a recovery will not be made by reason of anything that had been proved, or that might be, under that plea.

That much of the case has been blotted out, and the defendant has elected to stand upon his other pleas ; and to the issues raised on them, alone, can the jury respond in its finding. If such be the consequences, the defendant is precluded from complaining that the Circuit Court admitted improper testimony under the plea thus withdrawn.

If he proposed to controvert these rulings, he should not have surrendered that part of the case which called them forth. His “confession,” implied by the withdrawal of the-plea of non assumpsit, cured all the defects in the plaintiff’s-testimony offered in proof of his cause of action, and waived any right he might have had to review the rulings of the Circuit Court on questions pertinent to that issue, and to it alone.

Whether, therefore, the witness Colonel Walter was competent to testify, or not, to prove the admission of Mrs. Dawson that she borrowed the $5,000, the withdrawal of the plea dispensed with all proof on that point, and waived all right to predicate error in the admission of testimony under that issue.

But if this view did not conclusively dispose of the question, it would be difficult to place the admissions made by Mrs. Dawson on the ground of confidential communications. The statement was made in the presence of Miss Guy. It is much like the cases of Ripon v. Davis, 28 Eng. Law Rep. 358, and Griffith v. Davis, 27 Eng. Law Rep. 114 (5 Barn. & Adol. 504).

The general rule is that the party holding the affirmative of the issues, and upon whom is the burden of proof, has the right to open and conclude the argument to the jury.

But, whilst that much is universally conceded, must the judgment be reversed if the right has been denied? In Missouri, whilst stating the rule as above, the Supreme Court, in several cases, say that it is a matter of practice, resting in the discretion of the court; and on that ground the judgment will not be reversed, “unless it is manifest such ruling has produced a wrong to the party.” Birchard v. Insurance Co., 31 Mo. 520; Wade v. Scott, 7 Mo. 509.

In Fry v. Bennett, 28 N. Y. 330, it is said to be in discretion, and a denial of the right will not be ground of reversal, unless “ it has worked manifest injustice.” Such is the ruling in Texas. Belt v. Raguet, 27 Texas, 481. In Iowa a statute was to this effect: “ The party having the burden of the issue shall have the opening and closing.” “ And a new trial shall be granted for irregularities in the proceedings of the court, or for any * * *' abuse of discretion, by which the party was prevented from having a fair trial.” In Preston v. Walker, 26 Iowa, 208, it was said that “whilst the right to review such a question is not denied, yet there must be a clear case of prejudice in order to justify a reversal on that ground.”

We accept these authorities as declaratory of the proper practice. The party holding the affirmative of the issues must offer the testimony to maintain them, and has the privilege to open and close the case to the jury. Whether the privilege shall be denied, depends on exceptional circumstances.

In this case a large mass of testimony was introduced by the plaintiff, to support her cause of action, controverted by the general issue. Part of it was the admissions of Mrs. Dawson of the borrowing of the money, coupled with the further statement that, if she were to make out an account, she would owe Miss Guy nothing; other parts of it tended somewhat to help the defendant on_the issue of payment.

The plea, manifestly, was withdrawn for the purpose of getting the supposed advantages of opening and closing the argument. Looking to the posture of the case as made when the plea was withdrawn, we cannot condemn the action of the court as an abuse of discretion.

It is lastly assigned for error that the court did not exclude from the jury one or more remarks made by the counsel for the plaintiff in his closing argument, to which the attention of the presiding judge was called.

The language was to this effect: “That Miss Guy [the plaintiff], apure, high-minded, accomplished, and elegant lady, had sworn to the account sued on, * * . * and that she would not have done so if every dollar claimed had not been due ; and they would find her guilty of perjury if they found for the d efendant. ”

“ Counsel then stated to the jury that the presumptions were that Miss Guy had probated the account; but the court stopped counsel, and refused to let him say anything to the jury about the probated account, and the account was not taken out by the jury when it retired to consider of its verdict.”

The complaint is that the court did not exclude the statement from the jury.

A jury trial must be conducted according to the law of the land, and should be guarded by the court from all improper influences, so that the finding of the jury may be true responses to the issues, according to the law and evidence. Litigants have a constitutional right to appear and be represented by counsel, and the fullest liberty and range of argument should be allowed ; but within no allowable latitude is it permissible to state facts — and comment on them in argument — which are not before the jury in testimony. Such conduct is not protected by the privilege of counsel and the fullest liberty of speech.

Within the limits of the testimony, the right of argumentation, illustration, and comment is free. But that freedom does not extend to the assumption of facts not in evidence, as the basis of argument, to the prejudice of the adverse party. It is the duty of the presiding judge, to whom is intrusted the supervision of the trial, suo sponte, to interpose, especially so if attention is called to the impropriety. Mitchum’s Case, 11 Ga. 638; Berry’s Case, 10 Ga. 511.

In Dickerson v. Burke, 25 Ga. 227, it is declared to be the duty of the court to arrest an argument not based on the evidence.

The bill of exceptions states that, when the attention of his honor, the circuit judge, was directed to the remarks of counsel, the “ court said to counsel, in the presence of the jury, that there was no evidence before the jury of plaintiff’s swearing to the account against Mrs. Dawson, and counsel had no right to talk about it in argument.”

We construe this language as at once arresting counsel in the line of his speech, and distinctly informing the jury that the facts assumed as a basis of argument were not in evidence.

Doubtless the nisi-prius judge did all that seemed necessary to rectify the evil consequences, and it is difficult to see what more could have been done. He stopped counsel, and pointed out to the jury, or in their hearing, the irregularity complained of, and that there was nothing in proof as a predicate for the argument. We have no doubt counsel supposed he •could refer to, and comment on; the probated account on file. For this cause we decline to disturb the verdict.

Much of the testimony was circumstantial, in some respects •conflicting. On the whole case, we decline to set aside the ■verdict.

Judgment affirmed.