Anderson v. Nystrom

• Citation: 103 Minn. 168,114 N.W. 742
• Parties: ANDERSON v. NYSTROM et al.
• Decision Date: 24 January 1908
• Court: Supreme Court of Minnesota (US)

103 Minn. 168

114 N.W. 742

ANDERSON

v.NYSTROM et al.

Supreme Court of Minnesota.

Jan. 24, 1908.

Appeal from District Court, Wright County; Arthur E. Giddings, Judge.

Action by Martin Anderson against Peter O. Nystrom and others. Verdict for defendants. From an order denying a motion for judgment notwithstanding the verdict or a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

To infer a new promise from the fact of part payment of an obligation already barred by the statute of limitations, the debt or obligation must be definitely pointed out by the debtor and an intention to discharge it in part made manifest.

Where the creditor holds several separate claims, and the debtor makes a general payment upon his indebtedness, without directing or authorizing the application thereof upon any one of the claims, all of which are then barred by the statute, the bar of the statute is not removed as to any of them. Smith v. Moulton, 12 Minn. 352 (Gil. 229), applied.

To constitute a mere promise to refrain from doing an act a consideration sufficient to support a contract, an advantage must accrue therefrom to the promisee or a loss or disadvantage be sustained by the promisor.

A promise to make the estate of a deceased person no trouble in the matter of attempting to enforce claims against it, where the claims are barred by the statute of limitations and the estate of the deceased person is insolvent, does not constitute a sufficient consideration for a promissory note given by the heirs of the deceased person. W. H. Cutting, for appellant.

C. M. Ferguson, for respondents.

BROWN, J.

The facts in this case are as follows: One Ole Nystrom was, in his lifetime, indebted to plaintiff in the sum of $300, and made and delivered to him his three promissory notes therefor, as follows: One dated December 29, 1888, for $100, due three months thereafter; one dated June 20, 1889, for $100, due in three months; and one dated March 23, 1891, for $100, due November 1st following. On April 27, 1898, after the notes were all barred by the statute of limitations, Nystrom gave his son Peter, one of the defendants in this action, $50, directing him to pay it to plaintiff upon the indebtedness represented by the notes. The money was paid to plaintiff accordingly, who, without any instructions from Nystrom or his son, who paid over the money, indorsed as of that date $25 upon one and $25 upon another of the three notes so held by him. Thereafter, on May 1, 1902, Nystrom died, and his estate was insolvent. On September 22, 1902, defendants, sons of Nystrom, called upon plaintiff and stated that they came to ascertain what claim he had against their father's estate. Whereupon plaintiff produced the promissory notes already referred to, computed the interest due thereon, and stated that his claim was $475. Thereupon, in consideration of the surrender of the old notes and plaintiff's promise not to make the estate ‘any trouble on account of them,’ defendants made and delivered to him the note in suit, promising thereby to pay plaintiff $475 on December 1, 1903. They failed to pay the note, and plaintiff brought this action to recover the amount due thereon. Defendants answered, denying that ‘they or either of them made, executed, or delivered the promissory note mentioned in said complaint for value received, and allege that they did not, nor did either of them, receive any consideration for said promissory note.’ At the trial a verdict was directed for defendants, and plaintiff appealed from an orded denying his alternative motion for judgment notwithstanding the verdict or for a new trial.

The primary question presented, aside from the contention of plaintiff that the answer states no defense to the action, is whether defendants received any consideration for the note in suit, and this involves the further questions: (1) Whether the old notes were barred by the statute of limitations as the time the note in suit was given; and (2) even though they were barred, whether the promise of plaintiff to make the estate no trouble on account of the old notes furnished a sufficient consideration for the note in suit. We dispose of the claim that the answer fails to state a defense without extended discussion. It affirmatively alleges that defendants received no consideration for the note. This we think sufficient to admit the defense relied upon at the trial, the merits of which are now before us, and we come directly to the principal questions in the case.

1. The first question, namely, whether the old notes were barred by the statute of limitations when the note in suit was given, is controlled by the effect to be given to the payment of $50 in 1898. The facts upon this question are not in dispute. At the time the payment was made, plaintiff held three notes against Nystrom. The payment was made generally upon the indebtedness due plaintiff, and no directions were given that it be applied upon any particular note. All the notes were then outlawed, and plaintiff of his own motion applied one-half of the amount paid upon each of two of them. It is claimed by plaintiff that this payment and application was sufficient to revive the two notes, and that they were valid obligations of Nystrom when the note in suit was given. We are unable to concur in this contention. In order to infer a new promise from part payment of an obligation already barred by the statute of limitations, the debt must be definitely and specifically pointed out, and an intention to discharge it in part made manifest. This must appear from the act of the debtor, as no new promise can be inferred from the conduct of the creditor in applying the payment upon one of several obligations. The authorities are quite uniform in holding that where the creditor has several separate demands, and payment is made by the debtor upon his indebtedness, without specifying any particular debt or demand, the payment does not operate to revive any of the debts or obligations. Smith v. Moulton, 12 Minn. 352 (Gil. 229). In that case it was held that a general acknowledgment of indebtedness by a debtor to a creditor holding several claims against him does not remove the bar of the statute as to any particular debt. It there appeared that plaintiff held three promissory notes against defendant, who, after they were barred, made in writing a general acknowledgment of...