Charles Adams v. Thomas Clarke, 14 Vt. 9

The opinion of the court was delivered by Williams, Ch. J. This action is assumpsit on a guaranty, .to which there is a plea of the statute of limitations. The action was commenced July 6, 1836. The question is, at what time the cause of action accrued on the contract of guaranty, and this depends on the construction to be given to the contract, and no aid is to be derived from the declaration in giving the construction. On the 30th July, 1828, Samuel Hoffman executed a note to the present defendant, payable to him, or order, three years after date, and on the 14th of Jan., A.

D. 1829, the defendant sold the note to the plaintiff, and gave him a warranty that the note was due and that said Hoffman had nothing to file in against it. If the cause of action accrued at the date of the warranty, more than six years had elapsed before the commencement of this suit. If it did not accrue until the note was payable, six years had not elapsed. The whole of this contract is to be considered together, and is not to be treated as two distinct and separate undertakings ; although on either branch of the undertaking we apprehend the result would be the same.

The word due, sometimes means a present debt, though not payable then, as debitum in presentí, solvendum in futuro. More generally it has reference to the time of payment, particularly as applied to notes either negotiable or not. Thus we speak of notes over due, or that they will be paid when due.

It is said “ money is due at the expiration of the credit given, or at the period promised.” The contract here is not only that it is due, but that Hoffman has nothing to file against it, and this must refer to the time when a suit could be instituted thereon ; for, until then, it could not be ascertained or determined whether Hoffman had any claims to file against it, or not.

The meaning of this contract is, that the note shall be paid when due, or that the present plaintiff should be able to maintain a suit and recover judgment thereon when at maturity, without any defence on the part of Hoffman, either by plea in offset or otherwise, and is equivalent to a warranty that it is due and collectable. Such a warranty, in Connecticut, and according to the decision made in Foster v. Barney, 3 Vt.

R. 60, imposes on the holder the duty to commence a suit thereon in order to determine whether it is due and whether Hoffman has any thing to file against it, or, at least, to use due diligence to collect the note of him. It is true it is no answer to a plea of the statute of limitations that the party was ignorant of his cause of' action.

But this is of no importance in the case under consideration, as, on the view we takejof the contract,fwe think the parties contemplated a future period for the guaranty to take effect, and the writing itself has reference only to the time when the note should become due and payable. If there was any fraud in passing off the note, or if it was a forgery, or wholly void, so that no money could in any event be had thereon, the defendant might have been liable to the plaintiff instanter, but not in an action counting on the guaranty. The judgment of the county courtisjherefore reversed.