Peters v. Stuart

of plaintiff, together with that of her sister, was presented to defendant as administrator on November 17, 1890; he then told the person who presented these claims that he disputed and rejected them, and two days thereafter he signed and had left at plaintiff’s house a formal notice in writing, disputing and rejecting her claim. The summons in this action was served upon defendant on the 23d May, 1891. The statute expressly declares that an action upon such a claim must be commenced within six months after the dispute or rejection of it. Code of Civil Procedure, § 1822. The time of publication of the notice to present the claim is immaterial; the bar runs from the rejection and not from the commencement or end of publication of notice. Code § 1822. And it applies to claims accrued subsequent to, as well as prior to, the death of the intestate. Cornes v. Wilkin, 14 Hun, 428 ; aff’d, 79 N. Y., 129 . We think the rejection was ample to effect its purpose. It is true, as stated in Van Saun v. Farley, 4 Daly, 165 , “the statute does not mean by rejection merely a mental emotion, but the action of the mind must be followed" by some outward act by which the owner of the claim may be apprised of the result arrived at” But here, we think, there was much more than a mere mental emotion. There is no. statute or rule of law which requires the notice of rejection to be in writing or in any particular form.

In this case, when the claim was presented, it was immediately disputed and rejected, and the bearer of the claim was so informed at the time. This, we think, was sufficient If the agent presenting the claim had authority to present it to the administrator, it necessarily follows that he had authority to receive, on plaintiffs behalf, notice that he accepted or disputed and rejected it. Where a creditor sends a person to collect a claim of a debtor, the latter certainly is authorized to receive and receipt for any money that may be paid him on account of that claim, and where one sends an agent to make a demand of any kind, the answer of the person on whom the demand is made is good when given to the agent, and in law is considered as if given to the principal personalty. Qui facit per alium facit per se is one of the oldest and best established maxims of the law. Hence, we think, the statute commenced to run at the time of the verbal notice that the claim was disputed and rejected. But this was followed up by a written notice to the same effect within two days thereafter, which was left at the house of the plaintiff during her temporary absence with a person of suitable age and discretion, and the bearer was informed that she “ was not in,” according to the testimony of defendant’s witness, and that she “ was not home,” according to the testimony of plaintiff’s witness; and on the trial it appeared that she did not actually receive it until two weeks after it was served. Even taking the plaintiff’s testimony that she was not at home, we do not think that this was sufficient answer to apprise the defendant that she was absent more than temporarily, or was not at home to visitors, a common expression used by servants when a party does not wish to be seen, although in the house at the time. By

§ 796 of the Code it is provided that a notice or other paper in an action may be served on a party or an attorney either by delivering it to him personally or in the manner prescribed in the next section; and subd. 4 of § 797 provides that such notice may be served “ upon a party by leaving the paper at his residence within the state between six o’clock in the morning and nine o’clock in the evening, with a person of suitable age and discretion.”

While it is true that “where any statute or the terms of it require notice to be given, and there is nothing in the context of the statute or in the contract, or in the circumstances of the case to show that any other notice was intended, a personal notice must always be given ; but the context or circumstances of the case may be such as to show that a personal notice was not intended, and in such case a notice by mail, which is the ordinary mode of giving notice in business transactions, is authorized.” We think that the written notice left at the house of the plaintiff under the circumstances of this case was equivalent to a personal notice, and also set the statute running, and for this reason too the complaint should have been dismissed.

It has been said that the statute of limitations is a technical defense lacking merit, but it is a defense which the law gives, and as such is entitled to its full weight. “An executor is bound to set up the bar of the statute, and he would not be allowed in his accounting any sum paid upon a debt which at the time of its payment by him was barred by such statute.” Butler v. Johnson, 111 N. Y., 212 ; 19 St. Rep., 86 . “ Statutes of limitation form part of the legislation of every government and are everywhere regarded as conducive, and even necessary to the peace and repose of society.” Godden v. Kimmell, 99 U. S., 201 . “Statutes of limitation are vital to the welfare of society, and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. An important public policy lies at their foundation. They stimulate to activity and punish negligence. Mere delay extending to the limit prescribed is itself a conclusive bar. The bane and the antidote go together." Wood v. Carpenter, 101 U. S., 185 .

We think, therefore, that the court erred in refusing the motion of defendant to dismiss the complaint on these grounds. And we regret this result the less on account of the extremely unsatisfactory and hazy nature of the testimony offered on plaintiff’s behalf to support the claim for board of deceased alleged to be due, and because we think the charges of the plaintiff, not being a professional nurse, for attention during the deceased’s illness and for services rendered in subsequently preparing the body for burial, not being supported b any agreement to pay for them, are of doubtful validity under Hewett v. Bronson, 5 Daly, 1 .

The judgment should, therefore, be reversed, with costs to the appellant on this appeal and in the court below.

Bischoff and Pryor, JJ., concur.