Henderson v. Wadsworth McCarthy

Mrs. H. Estelle Wadsworth, the defendant in error in these cases, was the plaintiff in the circuit court, where she brought a joint action at law against the several plaintiffs in error and John G. Gaines and Stephen Z. Relf. The facts shown by the record were as follows:

On and long before the eighth day of November, 1860, William Henderson and the defendants John G. Gaines and Stephen Z. Relf were engaged in business as commercial partners in the city of New Orleans under the name of Henderson & Gaines, and on the day above mentioned, for the consideration of $30,450, money lent to them by the plaintiff, they made and delivered to her their note, of which the following is a copy: 'NEW ORLEANS, November 8, 1860.

'$30,450. On or before the fifth of May, 1867, we promise to pay, for value received, to the order of Mrs. H. Estelle Wadsworth, fifteen thousand dollars, and the further sum of fifteen thousand four hundred and fifty dollars on or before the twentieth day of the same month and year, (together thirty thousand four hundred and fifty dollars,) with interest at the rate of eight per cent. per annum, the interest to be paid semi-annually on the fifteenth day of May and November of each year.

'HENDERSON & GAINES.'

On July 1, 1866, the firm of Henderson & Gaines was dissolved, Henderson retiring, and was succeeded by the firm of Gaines & Relf, composed of the other two members of the dissolved firm. The new firm, gaines & Relf, bought all the personal property and assets of the old firm, assumed all its liabilities, including the note above mentioned, and agreed to exonerate Henderson,

The firm of Henderson & Gaines, while it continued, paid the interest as it fell due on the note above mentioned up to May 15, 1867, and Gaines & Relf thereafter up to May, 1877. William Henderson died on May 1, 1870, in the city of New Orleans, where he had been domiciled since the yaer 1860 and before. He left as his widow Eleanor Ann Henderson, and as his sole heirs at law the defendants William H. Henderson, Howard L. Henderson, Warren N. Henderson, and Victorine S. Henderson, the latter of whom had inter-married with the defendant M. C. McCarthy, all of full age, and all domiciled in the city of New Orleans. The widow and children subsequently removed to the state of Kentucky, where, on July 27, 1880, the widow died. Her son William H. Henderson was qualified as executor of her last will and testament. In June, 1877, the firm of Gaines & Relf was adjudicated bankrupt. On April 10, 1882, the present suit was brought by Mrss. H. Estelle Wadsworth, the payee on the note of Henderson & Gaines, against William H. Henderson individually and as the executor of the last will of the widow, Eleanor Ann Henderson, and against the other persons above mentioned, as the heirs of William Henderson, and against John G. Gaines and Stephen Z. Relf. M.C. McCarthy was joined as a defendant with his wife, Victorine S. McCarthy. The petition alleged that the widow and heirs of William Henderson had accepted his succession purely and simply, without the benefit of inventory, and had taken, and upon their own petition had been put in, possession of his estate, the said Eleanor Ann, as widow, in community of one-half, and the heirs of the other undivided half of the community property subject to the usufruct of the same in favor of their mother, the said Eleanor Ann Henderson, whereby the said widow and heirs became personally liable for the payment of all debts of said William Henderson, deceased, including the debt sued on, in the following proportions: the widow, Eleanor Ann Henderson, for one-half, and each of the above-mentioned heirs for one-fourth. The petition therefore prayed for judgment against Gaines and Relf for the whole amount due on the note; for judgment against William H. Henderson, as executor of Eleanor Ann Henderson, for one-half; and for judgment against each of the heirs of William Henderson for one-fourth of said amount.

The defendants, except Gaines and Relf, who never appeared or made any defense, filed a joint and several answer to the petition, in which they denied that they had accepted the succession of William Henderson purely and simply, without benefit of inventory; but as this issue was specially found against them by the verdict of the jury, it must be taken as a fact in the case that they did so accept the succession. They also, by way of defense, made the following averments: '(3) And for further answer these defendants say the pretended note sued on herein was made, and on its face made payable, in New Orleans and state of Louisiana, and by its terms matured and fell due not later than the eighth and twenty-third days of May, A. D. 1867, while said William Henderson and John G. Gaines and Stephen Z. Relf resided in said city and state, and plaintiff's supposed cause of action, in her petition set out, accrued to her and against said William Henderson in the said state, and not elsewhere, but did not accrue within five years next before the bringing of this suit, during all which time, as was and is well known to plaintiff, all these defendants and said Eleanor Henderson resided in said city of New Orleans and state of Louisiana, and by the law of said state, in force at the date of said pretended note and continuously since, and now in force therein, said pretended note was and is prescribed in five years next after the date of the maturity thereof, as aforesaid; and being so prescribed, no action thereon can be maintained in Kentucky under her laws. Wherefore these defendants plead and rely on the lapse of time and statute of limitation in bar of plaintiff's right of recovery herein against them.'

The plaintiff replied to this defense that the prescription and limitation so pleaded in bar had been interrupted and prevented from running against her right of recovery, in each and every year from the maturity of said note up to the time of bringing the action, by frequent acknowledgments of said debt by the firm of Henderson & Gaines and its members, and by the firm of Gaines & Relf, and by defendants Gaines and Relf, debtors bound in solido with William Henderson for the payment of said debt.

The defendants rejoined, taking issue on the replication of the plaintiff.

Upon the trial of the cause, the court, against the objection of the defendants, admitted evidence tending to show payments made upon the note by the firm of Gaines & Relf after the death of William Henderson, and by the assignee of Gaines & Relf after their bankruptcy; the purpose of such evidence being to show interruption of the prescription set up by the defendants against a recovery on the note. When the testimony was closed, the defendants moved the court to charge the jury as follows: 'That any payments made on the paper sued on herein by the firm of Gaines & Relf, or the assignee or liquidator of said firm, after William Henderson's death, did not interrupt prescription as to said Henderson, nor would any acknowledgment of said paper by said firm after said Henderson's death have that effect;' but the court overruled the motion, and refused to charge the jury as prayed for by the defendants; to which ruling of the court the defendants, and each of them, then excepted. The jury returned a verdict in favor of the plaintiff, and assessed separate and distinct damages against each of the defendants; and upon this verdict the court rendered separate judgments in favor of the plaintiff against William H. Henderson, as executor of Eleanor Ann Henderson, for $17,172.25, and against William H. Henderson individually, Howard L. Henderson, and Warren N. Henderson, each for $4,293.18; and against Victorine S. McCarthy and M. C. McCarthy, her husband, for a like sum. The parties defendant to these judgments prosecuted separate writs of error to each judgment, and each gave a separate bond to prosecute the writ of error to effect and answer all damages and costs on failure to make good the plea. But one record was brought to this court, to which all the writs of error had reference. In each of the cases, except the one in which William H. Henderson, executor, was plaintiff in error, the defendant in error filed a motion to dismiss the writ of error 'for want of jurisdiction, because the amount in dispute did not exceed five thousand dollars, and was not sufficient to sustain a writ of error.'

Walter Evans and Thomas L. Bayne, for plaintiffs in error.

A. E. Wilson, Julius Aroni, Charles B. Wilby, and G. H. Wald, for defendant in error

[Argument of Counsel from pages 268-274 intentionally omitted]

WOODS, J.