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single venture, the erection of the masonry for a bridge at a point
in Alabama near the city of Birmingham. To perform the work
tinder the contract required the expenditure in materials and labor
of several thousand dollars.

As managing partner, Commotto opened an account in the fim

Digitized by


Feb, 1895.] Valz v. First National Bank. 807

name with the appellee. The work began in the fall of 1886.
Commotto & Valz were paid monthly, but in order to meet the
weekly pay rolls ^^^^ and to carry on the enterprise, it was neces-
sary to overdraw their account at the bank. Their account was
overdrawn in January, 1887, six hundred and eighty-nine dollars
and eighty-nioe cents. On the first day of March, 1887, there
was paid on the overdraft the sum of sixty-nine dollars and thirty-
nine cents, leaving a balance due of six hundred and nineteen dol-
lars and fifty cents, for which Commotto, after the completion of
the work, executed to the appellee the firm^s note.

Suit was brought on the note against Commotto and appellant.
Appellant pleaded non est factum, and the judgment of the court
sustained the plea. Judgment was taken against Commotto on
the note. This action is brought against appellant on account for
the overdraft. A number of pleas were interposed: 1. That the
partner, Commotto, had no authority to make the overdraft; 2,
Former adjudication; 3. Estoppel; 4. Limitation. We will con-
sider these pleas in the order stated.

The proof conduced to show that Commotto had authority to do
whatever was necessary to carry on the work, and that to carry it
on it was necessary to overdraw the firm's bank account, and that
the appellant had access to and did examine the bank account of
the firm with appellee, and made no objection to nor raised any
question as to the correctness thereof, or as to the right of his part-
ner to overdraw. The proof shows that the money obtained was
need for the benefit of the firm. The law and facts having been
•^'' submitted to the court, and the court having found that the
partner, Commotto, had authority to make the overdraft, we could
rot disturb his judgment on that account.

It is insisted that the prosecution of the action on the note to a
conclusion under appellant's plea of non est factum waived its
right of action on the account for the overdraft, and, therefore,
there has been a former adjudication, which is relied upon as an
estoppel against appellee's right to recover on the account.

In arguing this question counsel insists that the doctrine of elec-
tion of remedies is applicable. We do not agree with counsel on
this question, or that the authorities which he cites on this point
are applicable to the question in this case. We do not feel it
necessary to notice in this opinion all the authorities thus cited.

Morris V. Rexford, 18 N". Y. 556, is cited. In that case there
was a bargain and sale of goods for cash; the vendee took posses-
sion, but failed to pay; the vendor obtained a redelivery of his
goods by writ of replevin. This was held to be a disaffirmance of

Digitized by


Valz v. First National Bank. [Kentackji

the sale and a bar to a subsequent action for the purchase money.
Certainly the court did right in holding that an action by whidi
a redelivery of the goods was obtained was a bar to an action for
the purchase money. When the vendor disaffirmed the contract
and obtained a judgment of the- court sustaining his action, he
could not be permitted to reaffirm it and recover the purchase
money. To have held otherwise, the vendor would ^^^ have
engaged in a very beneficial contract, the result of which would
have been to give him the goods, and also the purchase money.
In that case the vendor had two causes of action — ^the one to af-
firm the sale and sue for the purchase money, or to disaffirm it and
sue for the goods. Of course, when he made the election and re-
covered on the one cause of action, the judgment thus obtained
was a bar to the other cause of action.

In the case at bar the appellee had but one cause of action,
which was upon account for the overdraft, and that cause was not
merged by the execution of the note, as the partners could not bind
appellant by a note which was executed without appellanf i
consent after the completion of the work undertaken by the firm.

The case of First Nat. Bank v. Qaines, 87 Ky. 598, does not
sustain appellant's contention. That was an action to recover on
a note which purported to have been executed by all the parties
bound on the original notes, of which the notes in suit were in-
tended to be in renewal, when some of the sureties on the original
notes pleaded non est factum to the renewal notes. The court
held in that case that as the plaintiff had gone to trial to recover
on the notes purporting to be renewal notes, they could not recover
on the original notes, because the action was not based on
them, and there was no prayer to recover thereon.

This court has held in a number of cases where one partner,
after the dissolution of the partnership, executed a note in the firm
name for a partnership **• ^ebt, and the other partner interposed
a plea of non est factum in an action to recover on the note, and
the plea was sustained, that although a judgment had been taken
against the partner executing the note, the partner who pleaded
non est factum was still liable on the partnership debt for which
the note was executed, and a recovery could be had against sucb
partner thereon. The execution of the note by Commotto, and
the recovery against him thereon, does not bar appellee's right to
recover on the account for overdraft: Brozee v. Poyntz, 3 B. Mon*
178; Calk v. Orear, 2 B. Mon. 420; Doniphan v. Gill, 1 B. Mon.
199; Daniel v. Toney, 2 Met (Ky.) 523.

The appellant attempts to plead the statute of limitation of the

Digitized by


Feb. 189S.] Lawbsncs v. Louisvills, 809

state of Alabama, which is not sufficiently done. It is alleged that
the overdraft, if made, was in Alabama, and more than three
years had elapsed since plaintiff's alleged canse of action accraed^
and he pleads and relies upon the statute of limitation of that state
in such cases made and provided.

There is no allegation as to the terms and provisions of the stat-
ute of Alabama; there are no allegations which authorize the court
to conclude that the plaintiff's right of action was barred because
the action was not instituted within three years after the cause of
action accrued.

In the absence of a plea which shows the action is barred by the
laws of Alabama, we hold that it is governed by the laws of this
state. As there is no plea that the statute of this state would
bar the right •'^ to recover, it could not be made available. Be-
sides, the record shows the action was brought within five yean
after the cause of action accrued.

Judgment affirmed.

AFTER. — A new note or contract made by one partner in the name of
the firm, and within the scope of the partnership hnsiness, and after
dissolution, binds the firm until the payee of such note or contraet has
notice of the dissolution: Clement ▼. Clement, 69 Wis. 690; 2 Am. St.
Rep. 760, and note; Orayes t. Meny, 6 Cow. 701; 16 Am. Dec. 471,
ana note. See the extended notes to Chardon v. Oliphant, 6 Am. Bee.
674, and Van Eeuren v. Parmeiee, 61 Am. Dec 830.

STATUTE. — The statute of limitations, to be availed of, must be
pleaded: Gibson v. Green, 89 Va. 524; 87 Am. St. Rep. 888, and note:
but the statute of limitations is available as a defense without a formal
plea thereof, if theniatnre of the proceeding is such that the statute ean-
not be interposed directly as a bar to the plaintiff's right of action, and
is relied upon merely as precluding the plaintiff from assailing, on the
ground of fraud, an instrument offered in evidence by the defendants
Jackson v. Plyler, 88 S. C.496; 87 Am. St. Rep. 782, and note.

Lawrence v. Louisvillb.

fW Kkntockt, WR.l

GHANGB.— The legislature has power to pass limitation laws, and to
alter or change them by extending the time for their enforcement, or
to shorten the time, by giving a reasonable time for asserting the
rlirlit. provided snoh 1j»ws «io not aflPect oases to which the bap of the
existing statute of limitations has attached.

STATUTES-CONSTRUCTION.-Words of a statute ought not to
be given a retrospective operation, unlees they are so clear, strong,
and impressive that no other meaning can be annexed to them or un-
less the intention of the legislature cannot be otherwise satisfied.

Digitized by


810 Lawrence v. Louisville. [Kentuckji

right to the defense of the statute of limitations after It has become a
bar is protected against subsequent changes in the limitation law by
a constitutional provision that all "rights" shall continue valid.

plead the statute of limitations after it has run and become a bar to a
demand arising either ex contractu or ex delicto is a vested rights and
cannot be taken away by a subsequent repealing statute.

T. F. Hargis, for the appellaiit

H. S. Barker, for the appellee.

»»« PAYNTEE, J. On the twentieth day of January, 1891,
this action was brought by the appellant, Mary L. G. Lawrence,
against the city of Louisville for damages for personal injury,
alleged to have been caused by the neglect of the city in the erec-
tion and use of its bridge at the east terminus of Breckinridge
street, and that the bridge was defective and perilous, which
could be and was discovered by the city; that on the second day of
June, 1890, she was run over on the bridge by reason of the de-
fects in the construction and condition of the bridge, and her leg
was so mangled and injured that it became necessary to ampu-
tate it.

Among other defenses made by the city was, that more than
six months had elapsed from the time the ^^ cause of action
accrued before the action was instituted, and pleaded the statute
of limitations as a bar to the action.

The statute relied upon is an amendment to the charter of the
city of Louisville, approved March 29, 1882, and reads as follows:
*^o action for damages of any character whatever, to either per^
son or property, shall be instituted or maintained against the city,
unless such action be commenced within six months after the
accrual of the cause of action/'

A demurrer was filed to the paragraph of the answer pleading
this statute as a bar to the action. The court overruled the de-
murrer, and plaintiflf declining to plead further, the petition was
dismissed. To review this action of the court the cause is before
this court. The demurrer was overruled in January, 1892.

The statute of limitation supra was held by this court to be con-
stitutional in the case of Preston v. Louisville, 84 Ky. 118. This
court held a similar statute in relation to the city of Covington to
be constitutional: Covington v. Hoadley, 83 Ky. 444.

It is insisted by counsel for appellant that the statute supra,
which barred the action because it was not brought within six
months, was not in force when the demurrer was overruled by the
court, but that the general limitation law of the state was then

Digitized by


Feb. 1895.] Lawrence v. Louisville. 811

applicable, which did not bar an action for such injuries for one
jear after the cause of action accrued. The present constitution
was adopted September 28, 1891. It is contended that by the
■schedule ^^^ of the constitution all laws not inconsistent there-
with shall remain in force until altered or repealed by the gen-
eral assembly; that all actions not inconsistent with it are
continued as valid and all laws inconsistent with the constitu-
tion shall cease upon its adoption. And that, as by section 59
of the constitution, the general assembly is prohibited from pass-
ing any local or special acts **to regulate the limitation of civil or
criminal causes,'^ the special statute supra ceased, because it is in-
-consistent with that constitutional provision.

It is claimed, as the special statute ceased, the general law then
in force became applicable, and, as the action was brought withiL
one year from the time the cause accrued, the action was not
barred. In other words, that the general law became retroactive,
■and restored her right to maintain her action, and destroyed the
complete defense which the city had to it. The question as to
whether or not the special act is inconsistent with the constitution,
4Uid ceased on its adoption, is not decided, although the court may
consider the question involved apparently from that point of view.
To reach the conclusion which the court announces in the case, it
is not necessary to determine that the special statute has ceased.
It is no longer an open question as to the power of the legislative
branch of the government to pass limitation laws, and to alter or
change them by extending the time for their enforcement, or to
shorten the time by giving a reasonable time for asserting the
right. The power to do this before the bar takes place is con-

In some cases retrospective legislation may be upheld. •••
However, words of a statute ought not to have a retrospective
operation, unless they are so clear, strong, and impressive, that no
other meaning can be annexed to them, or unless the intention of
the legislature cannot be otherwise satisfied: Paterson, J., in
United States v. Heth, 3 Cranch, 399; Harvey v. Tyler, 2 WalL
347; Sohn v. Waterson, 17 Wall. 596.

While the first subdivision of the schedule of the constitution
continues as valid all actions not inconsistent therewith, the same
subdivision continues as valid all rights not inconsistent therewith.
It provides that "all rights, actions, .... and contracts ....
not inconsistent therewith shall continue as valid as if this con-
stitution had not been adopted.'*

At the time of the adoption of the constitution the right to

Digitized by


812 Law&bncs v. Louisville. [Kentucky^

plead the statute of limitationB had accrued. It was a complete
bar to the actioiL The language of the constitution shows an in-
tention to pieserve that ^^ght" as fully as the ''addon.''

The second subdiyision pioyides that ''actions and causes of
actions^ except as herein provided, shall continue and remain un-
affected by the adoption of this constitution." It follows that this
action was unaffected by the adoption of the constitution. The
right to recover, or the cause of action, having been extinguished
by the lapse of time, the adoption of the constitution did not re-
vive the right or cause of action. Evidently it was not intended
that it should be done.

The lawmaMng branch of the government has no more power to
destroy a defense that has accrued than it has to take the citizen's
property "without due ^^ process of law." When one is re-
leased from a demand by the statute of limitations, his right of de-
fense is as valuable as the right to institute the action. When the
defense has accrued, the right to maintain the action is destroyed.
When one has occupied land adversely for a given number of years,
the statute of limitations destroys tiie remedy which the owner
possessed to recover it. His right was extinguished by the de-
struction of his remedy. The defense is in the nature of a vested
right. In the application of the statute of limitations it is the
same, whether the suits arise ex contractu or ex delicto: Moore v.
State, 43 N. J. L. 203; 39 Am. Bep. 558.

Though a debt has never been paid, the statute of limitations
bars it after a certain lapse of time, and no legislative authority
can reimpose the obligation. The obligation can only be re-
imposed by his will and consent. When one is guilty of a tort,
and immunity from suit has arisen by operation of the statute of
limitations, the legislature cannot deprive him of it any more than
it can the debtor who has been exempted from a demand by opera
tion of the statute of limitations.

Naught V. Oneal, 1 HI. 36, was an action for slander, and the
court said: "If the cause of action accrued one year or more before
the repeal of the statute of limitations, still the old statute of limi-
tations is a good bar to the action. It is a complete bar before the
repeal, and the repeal of a statute does not affect the rights ac-
quired under the repealed statute."

In Moore v. Luce, 29 Pa. St. 262, 72 Am. Dec. 629, the court
said: "It is a mistake to suppose that the person barred by ••*
the statute loses nothing but his remedy. The law never de»
liberately takes away all remedy without an intention to destroy
the right. Eemedies are frequently changed. One is withdrawn

Digitized by


Feb. 1895.] Lawrence v. Louisville. 818

and others remain, or one is substituted for another. But when
all remedies are taken away after a specified period of neglect in
aaaerting rights, and, when this is done for the purpose of pro-
moting the best interests of society, the right itself is destroyed."

In Yon HofiEman t. Quincy, 4 Wall. 654, the court said: *'A
light without a remedy is as if it were not For every beneficial
purpose, it may be said not to ezisf In Sprecker v. Wakeley,
11 Wis. 440, the court said: ''And although it is generally true
that the statute only bars the remedy, and does not destroy the
right, yet when the defense has been vested, no subsequent revival
of the right to sue, as by repeal of the statute, or other act,
without the consent of the party entitled to the defense, could
take away or destroy such defense.'*

Kent, C. J., in Dash v. Van Kleeck, 7 Johns. 477, 6 Am. Dec.
291, quotes with approval the declaration as follows: "A law can
be repealed by the lawgivers, but the rights which have been
acquired under it while it was in force do not thereby cease.
It would be an act of absolute injustice to abolish with the law
all the eflfects which it produced/'

In Kinsman v. Cambridge, 121 Mass. 558, it was decided that
the statute of 1874, extending the time for filing a petition for
damages for land taken to widen a street, did not revive an action
already barred by the statute existing before the new act was

•^ Sutherland on Statutory Construction, section 480, holds
that there is a vested right in a defense to an action, even in the
statute of limitations, when thereby the bar has attached.

Mr. Cooley, in his work on Constitutional Limitations, page
465, says: 'Tlegarding the circumstances under which a man
may be said to have a vested right to a defense against a demand
made by another, it is somewhat difficult to lay down a compre-
hensive rule which the authorities will justify. It is certain that
he who has satisfied a demand cannot have it revived against
him, and he who has become released from a demand by the
operation of the statute of limitations is equally protected. In
both cases the demand is gone, and to restore it would be to create
a new contract for the parties — ^a thing quite beyond the power
of legislation."

In Davis v. Minor, 1 How. (Miss.) 183, 28 Am. Dec. 325, the
high court of errors and appeals of Mississippi decided that a
law reviving the right of action barred by the statute of limita-
tions is void. The chief justice, in delivering the opinion of the
court, said: ''To my mind it is clear that the momeut the remedy

Digitized by


814 Lawrence v. Louisvillb. [Kentucky,

was gone by the mnning of the statute^ the right was gone also,
and a right to set this lapse of time up as a defense vested in the
opposite party, and he could not be deprived of the privilege,
without his consent, by subsequent legislation. This must be
the rule if a defense may form, the subject of a right, and that it
may seems to me to be clear/'

It was decided in Thompson v. Read, 41 Iowa, 48, that the re-
peal of the statute of limitations cannot act retrospectively, so as
to disturb rights acquired thereunder ®^ and deprive parties of
protection to which they were fully entitled under the prior en-

The current of decisions in other states treats as a vested right
the privilege to plead the statute of limitations when it has
run and become a bar to a demand arising either ex contractu or
ex delicto. We believe the right of defense is just as important
as the right to bring an action.

When the right to recover property has been extinguished
because of the statute of limitations, we say that the one who thus
holds has a vested right. He acquired it not by a moral but a
legal remedy. He is then beyond the power of the legislature
to divest him of his rights therein, except by his consent or due
process of law.

From a wise public policy the legislature has declared that a
cause of action is destroyed by certain neglect, and thus secures
a party a right to withhold his property from subjection to a

The legislature has no more right in the one than in the other
case by retrospective legislation to destroy the right to property,
each being held by virtue of the statute of limitations. The right
to a defense should be held as inviolate as the right of action.
When the remedy is destroyed, the right to maintain the action
is extinguished.

Prom the foregoing views it will be seen that the court is of the
opinion that the demurrer was properly sustained, although when
the constitution was adopted, the six months' statute of limitation
may have ceased, and the one year statute become operative as to
the city of Louisville. However, this point is not decided.

Judgment afiirmed.

Where there is an existing statute of limitationB, the legislature may
pass an amendatory act which either shortens or extends the time
within which an existing cause of action may be barred. Such statute
is not uncoLBtitutional, as being in conflict with the provisions of ihm

Digitized by


Feb. 189S.] Law&ence v. Louibvilli. 815

United Btatefl constitation, which forbids the states to pass laws im-
pairing the obligation of contracts, if a reasonable time is given for the
oommenoement of an action before the bar takes effect: Extended note
to Qriffin ▼. McKeasie, 60 Am. Dec. 801.

bar of the statute of limitations is a vested right, and therefore tne
legislature cannot authorise the assertion ot a claim if such bar has be-
come final : Board of Education v. Blodgett, 156 111. 441 ; 46 Am. St. Rep.
348, and note.

must not be given a retroactive effect^ unless its language expressly re-

Suires it : People v. O'Brien, 111 N. Y. 1 ; 7 Am. St. Rep. 684, and note;
ane's Appeal, 67 Gonn. 182; 14 Am. St. Rep. 94, and note with the
cases coUeoted«

Digitized by






State v. Hill.

[4ft LouiKiJiA Ammual, S7.]

PROOF.—A plea of drunkenness of snch degree as to render the ac-
cused Incapable of entertaining malice toward the deceased at the
time of kilUng him is a special defense, and must be proTed by the
party urging it to the satisfaction of the Jury beyond a reasonable

must establish the malicious homicide of the deceased by the accused
b«*youd a reasonable doubt, and if, in making this proof, the drunken-
ness of the accused at the time of the killing is developed. It is to be
considered by the jury, in determining the felonious intent of the
bcmiclde; but It is not the duty of the state to prove a negatlTe l^
showing, beyond a reasonable doubt, that the accused was not so In-
toxicated as to render him incapable of entertaining malice agahtft
the accused. On the contrary, the defense must prove tbat he was la

Young & Youngs for the appellant.

M. J. Cunningham, attorney general, J. K BandeU, diatriet
attorney, and B. B. Snyder, for the state, appellee.

*'' WATKINS, J. The defendant was convicted on a charge
of murder and sentenced to death, and prosecutes an appeal from
the judgment rendered, placing his sole reliance on the alleged
error of the trial judge in refusing to give to the jury one requested
special charge.

The special charge requested and refused was of the follow-

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 36 of 121)