Hawkins v. Campbell, 6 Ark. 513 (1846)

April 1846 · Arkansas Supreme Court

6 Ark. 513

Hawkins vs. Campbell.

The puffing of commodities by the vendor,-or a false representation ab to the profilsf which may be derived from a speculation, will not avoid a contract.

Statutes of limitation are now favorably regarded by courts of justice : their necessity, as a means of suppressing vexatious litigation, preventing suits upon stale demands, of supplying the place of evidence lost by lapse of time, and of affording protection to defendants who may thus have been deprived of their evidence in consequence of such lapse of time, is so manifest that courts regard such quieting statutes with’ favor.

The operation1 of the act of December 14th, 1844, is prospective, and it did not revive causes of action barred by previous statutes — as held in Couch vs. McKee, ante.

íhe rule of construction that statutes of limitation operate upon demands existing at' the time of their passage, in the same manner as upon those accruing upon the day' they take effect, is the correct one when no previous act of limitation existed, or' where the previous act was repealed and the last act has reference to demands existing at the time of its passage.

But when the previous statute is not repealed, and tlie last act is prospective, all demands existing at the time of its passage are governed by the act in force at the time such demands accrued.

The act of 1844-does not by express words repeal any other portion of the 91st chap.Rev. Stnt., than the 20, 30 and 3-lst sections, and other parts of the chapter which-' conflict with the act.

The 6lh section of that chapter is not repealdd by express words, and conflicts with the' act of 1844 as to demands' accruing' after the passage of said act only, but not as to-causes-of action then existing.

The two acts are in pari materia, the last relates to demands'accruing after its passage*the first is, by the operation of the last, restricted to demands previously existing.

Writ of error to the circuit court of Chicot county.

Tins was an action of debt, by petition, brought by James: Campbell against John S. Hawkins, and determined in the circuit-Court oí Chicot, at the May term 1845, before Stjttow,-judge.

The suit was commenced 21st March, 1845, upon a promissory note executed by defendant to D. H. Abernathey, for $320, bear--ing date 9th April, 1840, due 25th December, 1840,. and assigned* by the payee to plaintiff.

Defendant obtained oyer of the note, and filed two pleas, the first, failure ó'f consideration, in substance as follows:

“And defendant comes, &e., and says, actio, non, because he says, that at and before the making of the note sued on, said' Abernathey called on defendant, and represented to him that defendant could make a profitable speculation by engaging in tne culture of the morns multicaulis and the growing, and 'making- of silk; and by way of inducing-defendant to engage in said business he proposed' to defendant that if he would engage therein', he would supply him with' 300' shrubs and buds of the multicaulis, find 3,000,000 of the eggs of the silk worm, on- and. upon condition that if defendant would execute to said Abernathey his note for $320 to fall due on the 25th December, 1840, he'would deliver to and supply defendant with 300 slips and buds of the multicaulis tree or shrub, and 3,000,000 of the eggs of the silk worm; and that it' was fully agreed and understood that nothing should be-paid- on the note'mi-til such time as defendant-should realize the'amount thereof in actual profits from-the cultivation and sale of the multicaulis and'silk,it being agreed by and between them that said Abernathey was to deliver the said 300 shrubs to defendant immediately after the execution of the note, and the said eggs on or before the commence-' ment of the ensuing year, to wit:- on or before tile first day of December, 1840: and in pursuance of said agreement executed the note sued on, and on that consideration only; that said Abernathey, in part performance of his said agreement, delivered to defendant said slips'or shrubs, and defendant immediately applied himself to the cultivation thereof, and kept onehand constantly employed in the cultivation of the same, for the whole of that season, to wit: the season of 1839, but that said Abernathey disregarding- his said agreement, wholly failed and neglected to supply defendant with- said 3,000,000 eggs, or any part thereof, though' often requested; and that in consequence of said failure deien-' dant was forced to abandon- the further cultivation of said mul-ticaulis and the raising of silk, and in consequence of said failure' of said Abernathey said defendant could not, by any means, make or realize ahy profits from the mortis multicaulis,- he being wholly without silk worms to commence or carry on the said silk making: and that defendant# by reason of said default of said Ab-ernathey, made no money out of said trees and buds, but on the contrary was damaged to a large amount, 'to wit, $200 : and so defendant in fact saith that said note was made by him on the agreement aforesaid, and on no other or different consideration, and that the consideration upon which the same was made has wholly failed: and this, <fcc., wherefore,” &c. The plea was sworn to.

The second plea was# that the cause of action did not accrue to plaintiff within three years next before the institution of the suit.-

Plaintiff demurred to both pleas, the court sustained the demurrers, defendant stood on the pleas, and final judgment was rendered for plaintiff.

Defendant brought error.

Pike & Baldwin, for plaintiff'.

The first plea is not good, and the demurrer to it was properly sustained. But the second plea is good in bar.

The note was made while the provisions in the Revised Statutes in regard to limitation were in force. By them, the limitation on this note was three years, as is here pleaded. Rev. Stat. Lim. § 6.

But the court below thought that the act of 1844 must govern this case., That act was passed on the 14th December, 1844. The note matured on the 25th of December, 1840, and so more than three and nearly four years had elapsed before the passage of the new statute. The defendant in error is mistaken in saying that three years had not elapsed. The action was then already barred before the new law passed. The only questions therefore are, first, whether the new law in terms revives this cause of action: and second, if it does so in terms, whether the legislature could constitutionally do so.

Now the act of 1844 is wholly prospective, and applies exclusively to. causes of action accruing after its passage. The first section provides that actions on notes, &c„, shall be commenced within five years after the cause of action shall,accrue. And this expression “shall accrue” is used in it four several times, in relation to the different species of actions.

So the second section, of exemptions, provides that if the person entitled to bring any action, in this or any other act of limitations now in force specified, “shall at the time of the accrual of the cause of action he under twenty-one,” &c.

The third section merely intends to reinstate non-residents m rights of which the legislature had attempted to deprive them, by the act of 14th January, ’43, Acts of 1843, p. 57, by at once cutting off existing rights of action: and to restore to them the right of suing within a limited-time.

The whole act is prospective, and provides for no cases at all where rights of action had already accrued, except those belonging to nom-residents. And therefore if the note in this case had fallen due only one day before it passed, the old statute would have governed. There is not the remotest appearance of an attempt to revive causes of action already barred’ :■ but the legislature, with more than ordinary wisdom,- provide only for cases arising after the passage of the law.- How there ever ha’s been- any doubt as to the meaning, of this-statute we cannot perceive.

It is not necessary therefore to question the- power of the legislature to do what they have not attempted. The statute in question creates a new rule, and the essence of a new law is that it forms a rule for future cases. No statute is to have-a retrospect Beyond the time- of its commencement.- Bac. Ab. Stat. C. The question is, to ascertain the intention of the legislature, taking as a leading guide, in aid of the construction, the presumption that all laws are prospective aard'not retrospective. Dash vs. Van Kleeck, 7 J. II. 486,595: And where the statute establishes a new rule of law,-it will not be held to have a retrospective operation, unless it so declares in the most unequivocal manner. Id. 497, 502, 503. It will never receive that construction, if capable of any other.

A- law may be repealed, but -the rights which have been acquired under it while it was in force do not thereby cease. Id. 506, citing from Puffendorf, and Lord Bacon. Sayre vs. Wisner, 8 Wend. 661.

Barwett, contra.

Oldham, J.

delivered the opinion of the court.

The first plea filed by the plaintiff in error to the action of debt brought against him by the defendant in error, in the circuit court, is not a good defence to the action. The puffing of commodities by the vendor, or a false representation as to the profits which may be derived from a speculation, will not avoid a contract. These are matters upon which every man must exercise his own judgment. If the purchaser, by reposing implicit' confidence in the representations of the vendor, should fail to realize his expections, it is his own fault, and the law will not relieve him from the consequences of such blind confidence. Dugan vs. Cureton, 1 Ark. R. 31.

The remaining question is as to the sufficiency of the plea of the statute of limitations. This suit was brought on the 21st March, 1845, upon a promissory note. At the time of the execution of the note, and the accrual of the demand thereon, the limitation of the action upon such a contract was three years. After the right of action accrued and before the bringing of this suit, the legislature extended the limitation, of the action on promissory notes to five years. The plea is based upon the 6th section of the 91st chapter of the Revised Statutes, and involves the question whether that section was repealed by the Act of 1844. Statutes of limitation are now favorably regarded by courts of justice. Their necessity, as a means of suppressing vexatious litigation, preventing suits upon stale demands, of supplying the place of evidence lost by lapse of time, and of affording protection to defendants who may have thus been deprived of their evidence in consequence of such lapse of time, is so manifest that courts regard such quieting statutes with favor. But few States have so imprudently changed their statutes of limitation as ours. It is important to the community that s.uch changes should not be made unless imperiously demanded, and then the language should be so strictly guarded as to prevent doubt or uncertainty upon the subject.

In Couch vs. McKee, decided at the present term, it was held that the operation of the Act of December the 14th, 1844, is prospective, and that it did not revive causes of action barred by previous statutes. The language employed is prospective and refers “ to causes of action which shall accrue,” and in no case has it direct reference to causes of action which had accrued at the time of its passage. It has been laid down as a rule of constniction of statutes of limitation that they operate upon demands existing at the time of their passage in the same manner as they do upon those accruing upon the day upon which they took effect. The People vs. The Supervisors, &c. 10 Wend. 365. Baldwin vs. Cross, 5 Ark. R. 510. This, we conceive, is the correct rule when no previous act of limitation existed, or where the previous act was repealed and the last act has reference to demands existing at the time of its passage, as does the 6th section of the 9th chapter of the Revised Statutes. But we are of opinion that when the previous statute is not repealed and the language employed in the last act is prospective, relating “ to causes of action which shall accrue” all demands existing at the time of the passage of the last act are governed by the act in force at the time such demands may have accrued.

The language of the act of December, 1844, as before remarked, is prospective. It does not, by express words, repeal any other portion pf the 91st chapter of the Revised Statutes than “ the twentieth, thirtieth and thirty-first sections, and other parts of that chapter which come in conflict with that act.” All other parts of that chapter still remain in force. The sixth section is not repealed by express words, and the question then recurs does it conflict with the provisions of the Act of 18441 So far as it relates to demands accruing after its passage, the first is by the operation of the last restricted to demands previously existing. We are therefore of opinion that three years as pleaded in this action formed a good defence m bar of the plaintiff’s right of recovery, and that the circuit court erroneously sustained the demurrer to the same, The judgment is therefore reversed and the cause remanded,