for this Circuit in Mann v. Cooper, 2 App.D.C. 226, and Noel v. Baskin, 76 U.S.App.D.C. 332, 131 F.2d 231. These cases, however, are distinguishable and involve a different principle. In each of them the agreement to waive the statute of limitations was not included in the original contract, but was a separate understanding made subsequently. Nevertheless, in the Noel case, supra, the Court of Appeals ruled that the defense of the statute of limitations, even under these circumstances, could not be waived perpetually, but only for a reasonable time, which the court stated would be equivalent to the period of limitations. A fortiori it necessarily follows that such a provision contained in the original instrument is not to be permanently binding, but at best effective only for an additional period of limitations, -- in this instance, an additional three years.
In the light of the foregoing discussion, this court is of the opinion that a stipulation contained in a written instrument attempting to waive the defense of the statute of limitations permanently as to any breach of the contract that might occur in the future, is void and unenforceable as contrary to public policy.
It is further contended that under any circumstances the defendant should be estopped from pleading the statute of limitations in this case. This argument is untenable, as the elements of an estoppel in paid are not present. Such an estoppel, if enforced, would be nothing but a mode of avoiding the principle just discussed.
Under the circumstances, the defendant is entitled to summary judgment on the first count of the complaint.
The second count remains for consideration. It alleges that, 'in the said note the defendants agreed to reimburse the Estate for all insurance premiums paid by the Estate on a certain life insurance policy'. It is averred further that certain insurance premiums had been paid accordingly and demand is made for judgment for the sums so expended. The note is annexed to the complaint.
It is an elementary rule, of course, that if there is a discrepancy between the terms of an instrument annexed to a pleading and its interpretation in the pleading, the former must prevail. The note contains the following provision:
'As security for the payment of this note policy numbered 366647 issued by the New England Mutual Life Insurance Company of Boston, Mass., on the life of William Chester Lankford, one of the makers hereof, for $ 10,000 has been assigned to the Estate of Herman W. Van Senden, deceased, said assignment embracing the above, and all other indebtedness of William Chester Lankford, that may be due said estate at the date of the maturity of said policy or at the date of its cash surrender, including all payments made by said estate of premiums on siad policy and interest thereon at the rate of 6 per cent per annum.'
We observe that the foregoing provision extends the security to any payments of premiums that may be made by the payee of the note, but does not create any personal obligation on the part of the makers to reimburse the payee for the premiums so paid, if the security is insufficient. It is obvious that the insurance policy was taken out as additional protection for the payee and, therefore, there seems to be good reason why the makers did not undertake an independent obligation to reimburse the payee for the premiums, but merely extended the security to cover them. In view of these considerations, the second count does not set forth a valid claim, and the defendants are entitled to summary judgment on the second count.
Accordingly, the motion of the defendants for summary judgment on both counts of the complaint is granted. The corresponding motion of the plaintiff is denied.