Bowe v. Ledworowsky

• Decision Date: 03 April 1934
• Parties: BOWE v. LEDWOROWSKY ET AL.
• Court: Wisconsin Supreme Court

215 Wis. 1

253 N.W. 791

BOWE

v.LEDWOROWSKY ET AL.

Supreme Court of Wisconsin.

April 3, 1934.

Appeal from a judgment of the County Court of Dodge County; E. H. Naber, Judge.

Action by Catherine Bowe against Anton Ledworowsky and another. From a judgment in favor of the plaintiff against both of the defendants, the defendant Jacob La Buy appeals.--[By Editorial Staff.]

Judgment affirmed.

Action to recover on a note executed by defendants, Anton Ledworowsky and Jacob La Buy. The defendant La Buy admitted the signing of the note October 30, 1914, denied making any payments, either by himself or through any other person, and pleaded the bar as to him of the statute of limitations. The case was tried to the court, a jury having been waived, and the following facts were found: The signing of the note by the defendants; indorsement on the back of the note showing interest payments annually from October 30, 1915, to October 30, 1929; that interest payments were made by the defendant Ledworowsky or one of his sons; that no part of the principal was paid; “that ‘every twice a year,’ plaintiff and the defendant La Buy talked about the note and La Buy asked if interest was paid, and on numerous occasions stated that defendant Ledworowsky would pay the note or the interest. Following such talks, interest was paid;” that about two years before the trial plaintiff talked with La Buy about the interest and La Buy said he would see the defendant Ledworowsky. This he did. On August 27, 1932, La Buy wrote a letter to the plaintiff asking her to come and see him and bring the note along. The trial court was of the opinion that each year up to 1929 the defendant La Buy referred plaintiff to defendant Ledworowsky for payment; that defendant La Buy had full knowledge “of such payments and consented and acquiesced therein”; and found as conclusions of law that plaintiff was entitled to judgment against both defendants who were jointly and severally indebted to her in the sum of $400 principal, and interest thereon from October 30, 1929, at 5 per cent. From a judgment accordingly entered, defendant La Buy appeals.A. W. Lueck and J. L. Skipniewitz, both of Beaver Dam, for appellant.

W. C. O'Connell, of Fox Lake, for respondent.

FAIRCHILD, Justice.

[1] One cannot be protected against a claim by operation of the statute of limitations where the lapse of time has occurred because of acts in which the debtor has intentionally participated for the purpose of inducing extension of credit and which continued the debt as a recognized obligation. Worden v. Mitchell, 7 Wis. 161;Waterproof P. & B. Co. v. Van Buren, 182 Wis. 640, 197 N. W. 338;Weinbergen v. Bartels, 192 Wis. 539, 213 N. W. 313;Gillitzer v. Ducharme, 203 Wis. 269, 234 N. W. 503;Kline v. Fritsch (Wis.) 250 N. W. 837. This rule is not inconsistent with or affected by section 330.47, Stats., which provides that, if there are two or more joint contractors, no one of them shall lose the benefit of the limitations fixed by statute so as to be chargeable by reason only of payment made by any other of them.

[2] The evidence in this case discloses an arrangement and understanding on the part of the appellant with the owner of the note which brings into the case facts beyond the mere payment by the...