Wood on Limitations, 605; United States v. Wilder, 13 Wall. 254; 3 Kent's Commentaries, 50. We have examined with care the cases upon the other side of this question, especially Sigourney v. Drury, 14 Pick. 387; Quimby v. Putnam, 28 Me. 419; Hewlett v. Schenck, 82 N. C. 234; Moore v. Goodwin, 109 N. C. 218; Moore v. Beaman, 111 N. C. 328; Merritt v. Day, 38 N. J. L. 32; 20 Am. Rep. 362; Cox v. Bailey, 9 Ga. 470; 54 Am. Dec. 358; McClurg v. Howard, 45 Mo. 365; 100 Am. Dec. 378; Perkins v. Barstow, 6 R. I. 505; Woonsocket Inst. v. Ballou, 16 R. I. 351. In this last cited case, the supreme court of Rhode Island, after reviewing the cases in that state, says: "The cases are doubtless at variance with the rule now generally prevailing in the United States," and hold that the doctrine is too firmly established in that state to be altered except by a statute. In the case of Hunter v. Robertson, 30 Ga. 479, the court, while holding to the rule declared in Cox v. Bailey, 9 Ga. 467, 54 Am. Dec. 358, as to the effect of a payment by one of two joint obligors, refuse to extend the rule so as to affect indorsers or sureties, and express grave doubts as to the correctness of the rule as to joint obligors, and use this language: "But again: If the principle is wrong when applied to joint makers-and there is no doubt in my mind that it is-shall we extend it to an indorser on the same fallacious reasons?" In the case of McClurg v. Howard, 45 Mo. 365, 100 Am. Dec. 378, Judge Bliss, delivering the opinion of the court, and referring to 101 the case of Shoemaker v. Benedict, 11 N. Y. 176, 62 Am. Dec. 95, says: "I confess it would be very difficult to reply to or resist the force of the reasoning of Judge Allen, who gave the opinion of a majority of the court in that case; and were the question a new one in Missouri, I would favor the application of its doctrine to the present case, but the question was expressly decided the other way by this court in Craig v. Callaway County Court, 12 Mo. 94, and the decision was in accordance with the authorities at that time." And hence the question was considered as not an open one in Missouri. To the same effect is Campbell v. Brown, 86 N. C. 376, 380, 382: 41 Am. Rep. 464. And thus upon examination of the authorities we find not only that the principle here contended for by the plaintiff is denied by the overwhelming weight of authority, but also that in some of the states where it is recognized as the law the courts continue to sustain it solely for the reason that it has been so decided in earlier cases. The case of Cross v. Allen, 141 U. S. 528, is strongly urged upon us, as being a case which in effect denies the doctrine of Bell v. Morrison, 1 Pet. 351. There are some expressions in the case which give some foundation to the contention; but an examination of the case leads me to the conclusion that it was correctly decided for reasons which in nowise conflict with anything said in Bell v. Morrison, 1 Pet. 351. The case arose in the state of Oregon, and the question was, whether the payment by a principal suspended the running of the statute as to a surety. Of course, this called for a construction of the statute of Oregon. The statute in force was peculiar to that state and Minnesota. In each of those states the statute had been considered by their supreme courts and held to mean that payment by any party upon an existing contract after it becomes due had the effect of causing the statute to run as to all the parties, only from the date of the last payment: Whitaker v. Rice, 9 Minn. 14; 86 Am. Dec. 78; Partlow v. Singer, 2 Or. 307; Sutherlin v. Roberts, 4 Or. 378. 102 In these cases the peculiarities of the statute are pointed out and commented upon. We have herein before quoted the present statute of Minnesota. A comparison of that statute with the one existing at the time of the decision in Whitaker v. Rice, 9 Minn. 14, 86 Am. Dec. 78, will show the reasons for the different rulings in that state: See Willoughby v. Irish, 35 Minn. 63; 59 Am. Rep. 297. Upon the whole case I am of the opinion that the true construction of our statute (Rev. Stats. 1887, sec. 2381) is that given by the supreme court of Ohio in Kerper v. Wood, 48 Ohio St. 621, viz.: "A payment, an acknowledgment, or a promise in writing will not avail to take a case out of the statutory bar unless made by a party to be charged thereby, or an agent authorized for that express purpose," and that the judgment of the district court of the county of Laramie should be in all respects affirmed. Groesbeck, C. J., and Conaway, J., concur. LIMITATIONS OF ACTIONS-DEMURRER-NO CAUSE OF ACTION.-The statute of limitations is available on demurrer, upon the ground that there is no cause of action, where the complaint shows that the action has not been brought within the time allowed by law: Notes to Sleeth v. Murphy, 41 Am. Dec. 234; Sturges v. Burton, 8 Ohio St. 215; 72 Am. Dec. 582; note to Gebhart v. Adams, 76 Am. Dec. 704. LIMITATIONS OF ACTIONS.-A NEW PROMISE OR PART PAYMENT BY ONE OF TWO JOINT DEBTORS, whether made be fore or after the debt is barred by the statute of limitations, takes the case out of the statute only as to the party so promising or paying. It does not suspend the running of the statute as to the other joint debtor: Note to Boynton v. Spafford, 53 Am. St. Rep. 276; Walters v. Kraft, 23 S. C. 578; 55 Am. Rep. 44, and note. Contra, Burgoon v. Bixler, 55 Md. 384; 39 Am. Rep. 417, and note. STATUTES ADOPTED FROM ANOTHER STATE-CONSTRUCTION.-If a clause is taken from the constitution or statute of another state, it is deemed to have the meaning given by the courts of that state: Laporte v. Gamewell etc. Tel. Co., 146 Ind. 466; 58 Am. St. Rep. 359, and note. LIMITATIONS OF ACTIONS-REQUIREMENTS AS TO NEW PROMISE OR ACKNOWLEDGMENT.—An acknowledgment from which a new promise is to be implied, and which will remove the bar of the statute of limitations, must be made by the debtor, in writing, or by some person authorized to make it, and it must be made to the person holding the claim, or to some person acting for him: Houston v. Jankowskie, 76 Tex. 368; 18 Am. St. Rep. 57; note to Ferguson v. Harris, 39 Am. St. Rep. 740. MCFARLAND V. RAILWAY OFFICIALS AND EMPLOYÉS ACCIDENT ASSOCIATION. [5 WYOMING, 126.] INSURANCE, ACCIDENT LIMITING TIME FOR SUIT.It is lawful for the parties to a contract of insurance, by a provision inserted therein, to reduce or limit the time within which an action may be brought upon such contract, provided a reasonable time remains, after that allowed for the performance of conditions precedent, in which to bring suit; and, if the time limited is one year from the happening of an injury, a reasonable time remains for bringing suit where the plaintiff has more than five months in which to commence suit within the time limited after the cause of action has matured, and eight months after the company has denied its liability. CONTRACTS CONSTRUCTION - MEANING AND IN-. TENT.-The rule of construction is the same for contracts as for statutes. The object to be attained in construing a contract is to ascertain the meaning and intent of the parties as expressed in the language used. INSURANCE, ACCIDENT-TIME LIMITED FOR SUIT COMMENCES AT DEATH OF INSURED.-If a policy, insuring against death by accident, limits the time for bringing an action thereon to "one year from the date of the happening of the alleged injury." and the insured dies from injuries against which he has been insured, the limitation begins to run from his death, and not from the time that an action is maintainable, although the policy fixes a time for furnishing proofs of death, and provides that no action shall be commenced until ninety days after the proofs required are furnished. It follows, therefore, that the date of the limitation cannot be postponed by the fact that the proofs have been furnished within the time required, and that the company has, within such time, finally refused to pay. Action brought by Mary E. McFarland on a policy of insurance upon the life of her husband. The case was heard on questions reserved for the opinion of the supreme court. A. C. Campbell and R. W. Breckons, for the plaintiff. 128 CONAWAY, J. This action was brought on a certificate policy of accident and life insurance, whereby defendant insured the life of William W. McFarland for twelve months commencing June 10, 1891, against death by external, violent, and accidental means, in the sum of two thousand dollars, payable to plaintiff, wife of the insured, should death result within ninety days from the time of the injury. 129 On May 1, 1892, the insured received injuries such as he was insured against by virtue of the certificate or policy mentioned, from which injuries he died the same day. Deceased was also insured in the same instrument against injuries not resulting in death; but this branch of the subject it is not necessary to consider. The certificate contains the following provision: "No suit in law or equity shall be maintained on this certificate on any accidental injury or death, unless such suit be brought within one year from the date of the happening of the alleged injury, and failure to bring suit within one year shall be taken and deemed as conclusive evidence against the validity of such claim and of forfeiture of all right under this certificate." Suit was not brought on this policy or certificate within one year from the date of the happening of the injury to and the death of the insured, but was brought a little more than thirteen months after. Plaintiff admits that it was competent for the parties to limit the time for bringing suit by a provision inserted in the certificate by the association and accepted by the insured, but plaintiff insists that under the conditions of the certificate, the time of the limitation should not run "from the date of the happening of the alleged injury," but should run from the time the cause of action accrued, or, in other words, from the time when the company might be sued. This could not be done until the expiration of ninety days after the claimant had furnished verified affirmative proof in writing of the injury, which proof was required to be furnished within seven months from the happening of such injury. It appears that proofs of death were furnished by plaintiff on August 24, 1892, less than four months after the injury to and death of the insured. It further appears that the defendant finally denied its liability and refused to pay plaintiff's claim on September 1, 1892, just four months after such death and injury. By written stipulation of the parties filed in the cause, it is in effect agreed that if the court should be of the opinion 130 that the suit is not barred by the limitations contained in the certificate, judgment shall go in favor of the plaintiff; otherwise in favor of the defendant. Under these facts and conditions the district court finds that three difficult and important questions arise, upon which it reserves its decision and sends the cause to this court for its decision of the questions under the statute authorizing this course of procedure. The questions so reserved are these: 1. Under the allegations contained in the pleadings herein was this action commenced in time, or was the claim of the plaintiff barred at the commencement of this action by reason of the provisions of the policy sued upon, as set forth in the pleading? 2. Under the pleadings herein, did the limitations named in the policy begin to run at the death of the insured, or at the expiration of ninety days after the receipt by defendants of proofs of death, or at the time when defendants refused to pay the plaintiff's claim? 3. Under the written stipulation of the parties herein should judgment be rendered for the plaintiff or for the defendant? The district court asks: "Was this action commenced in time?" The answer to this question must determine what the judgment shall be. But to answer this and the other questions reserved and submitted we must consider and determine from what date the limitation runs. Three dates to be considered are indicated in the questions of the court, and in the briefs and oral arguments of counsel: 1. The date of the death of the insured, May 1, 1892; 2. The date of the final refusal of defendant to pay the claim of plain. tiff, September 1, 1892; and 3. Ninety days after proofs of death were furnished, the expiration of the ninety days occur ring November 24, 1892. The question of the date from which the limitation runs is an important one, involving, as it does, leading and elementary principle in the construction of contracts, and being the ques tion of first impression in the courts of this state. 131 And it |