Merchants Exchange National Bank v. Wallach

To an action upon a promissory note made by the firm of Daters & Co., of which the defendant was a member, the defense of the statute of limitations was interposed, and the sole issue in the case was whether payments had been made upon the instrument within six years before the commencement of the action, which payments became binding upon the defendant, thereby removing the bar of the statute. The plaintiff was the payee of the note, of date August 4, 1888, payable in six months, and the action was commenced February 4, 1896. Thus, the lapse of more than six years between the accrual of the cause of action and its enforcement was apparent, and the action was barred, unless circumstances suspending the operation of the statute were shown. An actual payment of interest upon this note made by the firm of Daters & Co. to the plaintiff on February 7, 1891, was testified to; and while the defendant now attacks this testimony as lacking in particularity, and as be

So far, there was sufficient evidence to take the case to the jury, but there remains to be considered the point made by the appellant that.the issues were submitted to that body upon yet a further and untenable ground for the imposition of liability. It appeared that as lately as December 18, 1893, a payment upon this note was made by one Sturgis, an employé of the firm of Daters & Co., but not one of its members; and the court left it to the jury to say whether Sturgis had power to bind the defendant by this payment. According to the defendant’s testimony, Sturgis was employed as a bookkeeper at the time of such payment, and was assisting one Hoffman, a member or ex-member of the firm, in winding up its business. The defendant further testified that Hoffman had authority from him to make payments, and testimony was given by the plaintiff’s attorney, called as a witness, that the defendant had admitted to him that "these payments [alluding to the payments of 1893 and earlier] were made with Mr. Hoffman’s authority.” Thus, it would seem that the jury might have found Sturgis’ act to have been binding upon the defendant; but the matter is not brought before us for review by any exception in the record, and its discussion therefore becomes unnecessary. In the course of argument upon the defendants’ final motion for the dismissal of the complaint, the court stated the. grounds for an adverse ruling, one of which was the propriety of submitting to the jury the question as to the payment by Sturgis in 1893, and the motion was denied under exception. This exception presented no error, since the ruling was, in any "event, supported by the evidence of the payment made by the firm in 1891; and the defendant took no exception to the charge of the court with regard to the matter of Sturgis’ agency, nor was the question presented by any requests to charge. But one request was made, and this had to do with the burden of proof of authority in the person making any payment, after the dissolution of the firm,-in order that the defendant might be affected by such payment. The refusal to charge this request, as framed, was clearly proper, since the proposition was directly founded upon the assumption that there had been a dissolution as testified to by the defendant, while this testimony, being that of an interested witness, was not conclusive, and was for the jury to credit or not, in their discretion.

Judgment affirmed, with costs. All concur.