Clark v. Howe

The opinion of the Court was by

There is no doubt that this action should have been commenced by the plaintiff as the surviving partner of the firm of Cyrus Clark & Co. It was a debt due to that firm; and the liability has «ever been chquged by any agreement of the defendant with the plaintiff’s 'Intestate.

But the cause of action, if any exists, accrued in 1834; *562and the statute of limitations is set up in defence ; and more than six years had elapsed thereafter before this action was commenced. The cause of action did not depend, for its origin, on the discovery, by the members of the firm of Cyrus Clark and Company, that they had ever had a note, of the kind supposed, against the defendant, but on the fact, that on settlement, in 1884, they allowed and admitted, erroneously, an item for 20 M. of shingles, which had been before paid for. The defendant’s promise to pay upon a contingency added nothing to his liability. If he had been before paid for the shingles, and was then again paid for them, by reason of his false allegations, a right of action instantly accrued against him. If he had not before been paid for them, his promise to refund the amount in any contingency, was without consideration, and therefore void.

The defendant’s letters, relied upon, as taking the case out of the statute of limitations, contain no acknowledgment of indebtedness, or promise to pay any thing in any event.

Plaintiff nonsuit.