Earl v. Napp

• Citation: 261 N.W. 400,218 Wis. 433
• Parties: EARL v. NAPP.
• Decision Date: 04 June 1935
• Court: Wisconsin Supreme Court

218 Wis. 433

261 N.W. 400

EARL

v.NAPP.

Supreme Court of Wisconsin.

June 4, 1935.

Appeal from a judgment of the Circuit Court for Grant County; S. E. Smalley, Circuit Judge.

Reversed.

FAIRCHILD, J., dissenting.

Action commenced on April 5, 1934, by the plaintiff William Earl, to recover from the defendant, John Napp, on a promissory note executed by him on March 18, 1927, and payable in one year. Defendant admitted the execution of the note and that he paid interest thereon to March 18, 1928, but alleged that no payment of any nature or description had been made thereon as interest or principal since March 18, 1928, and that for that reason the six-year statute of limitations had run against the payment thereof (St. 1933, § 330.19). On the trial, plaintiff contended that the running of the statute of limitations had been tolled because of an authorized application, evidenced by an indorsement made on the note on May 1, 1931, of a payment made on account of interest by the delivery of lime by the defendant to the plaintiff on that day. Defendant denied that he had made any such delivery, and also denied that he had authorized plaintiff to apply the value thereof as a payment on the note. On a trial of the resulting issues, the evidence was conflicting, and the jury, in a special verdict, found (1) that the defendant did deliver lime to the plaintiff in May, 1931; but (2) that the defendant did not authorize the plaintiff to apply the value thereof as a partial payment on the note. Upon motions after verdict, the court changed the latter finding by substituting therefor a finding that the defendant did authorize the application of the value of the lime as a partial payment on the note. Upon the verdict as modified, the court entered judgment for the plaintiff, and defendant appealed.J. E. Barnett, of Boscobel (Richmond, Jackman, Wilkie & Toebaas, and L. E. Hart, all of Madison, of counsel), for appellant.

George F. Frantz, of Fennimore (Carthew & Meyer, of Lancaster, of counsel), for respondent.

FRITZ, Justice.

[1][2] Defendant contends that, in view of the conflict in the evidence, it was error for the court to substitute an affirmative answer for the jury's finding that the defendant did not authorize the application of the value of the lime as a partial payment on the note. A review of the evidence on that issue of fact discloses that, although the evidence well warranted the court's finding, it cannot be said that the evidence did not also admit of the jury's finding, if the jury believed that defendant's testimony was credible. Under those circumstances, the court could not rightly substitute its finding for the jury's answer (Trautmann v. Charles Schefft & Sons Co., 201 Wis. 113, 228 N. W. 741;Heaney v. Chicago & N. W. R. Co., 213 Wis. 670, 252 N. W. 173), but, at most, could merely, in the exercise of its discretion, set the verdict aside in the interests of justice and order a new trial.

[3] A credit in favor of a debtor for goods delivered by him to his creditor may, if duly applied as a part payment on the latter's claim against the debtor, be sufficient for the purpose of interrupting the running of the statute of limitations. Green v. Dodge, 79 Vt. 73, 64 A. 499;Rowell v. Lewis' Estate, 72 Vt. 163, 47 A. 783;Cuthbertson v. Hill, 65 Vt. 573, 27 A. 71;Green v. Disbrow, 79 N. Y. 1, 35 Am. Rep. 496; Wood on Limitations (4th Ed.) p. 558, par. 112; 17 R. C. L., p. 928, § 292.

[4][5] Under the evidence, the only ultimate issue of fact which it was actually necessary to submit to the jury, in respect to the effect of crediting the value of the lime, if delivered as a payment on the note, was not whether the defendant had authorized the plaintiff to apply the value thereof as a partial payment on the note, but was whether that delivery was made to the plaintiff under such circumstances that it was not a gift to the plaintiff, but that he became indebted therefor to the defendant. Defendant's testimony in respect to that issue of fact was, “I believe Mr. Earl offered to pay me for a load of lime. * * * I said I didn't want it. * * * I didn't want anything. I couldn't say just the words Mr. Earl said but he wanted to do something and I said no I didn't want anything and that is all I know that was said.” Plaintiff, on the other hand, testified, “When he got it unloaded I asked him how much it was. ‘Well’ he says ‘never mind. Just let it go.’ ‘No,’ I says, ‘John, I don't want to do that. I want to pay you, and you tell me what it is and I will give you credit.’ ‘Well’ he says, ‘4.50.’ ” In view of that conflict, it was for the jury to determine whether plaintiff received the lime as a gift, or whether he became indebted therefor to the defendant. If, upon that issue, a jury found the facts to be such that indebtedness for the value of the lime was then incurred by the plaintiff to the defendant, then, in the absence of a request by the defendant to have the credit to which he was entitled by reason of that indebtedness applied in some other manner, the plaintiff could, without being expressly authorized by the defendant, apply, as he did, his indebtedness in that respect as a payment on the note. It is well established that, in the absence of some other application by a debtor, at the time of making a payment, or an agreement with the creditor as to some other application, the latter may apply a payment upon such account against the debtor as he chooses. Johnston v. Northwestern Live Stock Ins. Co., 107 Wis. 337, 83 N. W. 641;Coxe Bros. & Co. v. Milbrath, 110 Wis. 499, 86 N. W. 174;W. H. Pipkorn Co. v. Evangelical Lutheran St. Jacobi Soc., 144 Wis. 501, 129 N. W. 516;Nelson v. Davison, 152 Wis. 567, 140 N. W. 334; Theiler v. Consolidated Indemnity & Ins. Co., and Wilson Const. Co., 213 Wis. 171, 176, 250 N. W. 433, 435. Usually occasion for resort to that rule arises only when there is a question as to which of several accounts or claims owing by a debtor is to be credited with a payment which he did not apply on any particular one of his accounts. However, if, under such circumstances, a creditor is authorized, as a matter of law, to apply the debtor's payment or credit to such of the debtor's accounts as the creditor chooses, then, when there is but one account, he is certainly likewise authorized to apply such a payment or credit on that account. Consequently, if, in the case at bar, a question had been submitted, and the jury had found in answer thereto that the delivery of the lime was made under such circumstances that the plaintiff became indebted therefor to the defendant, then, because of the absence of any request by the latter for any other application of his resulting credit, the plaintiff would have been authorized, as a matter of law, to apply that credit, as he did, on the defendant's note. As, under those circumstances, the fact to be found by the jury in answer to such a question would constitute the ultimate fact, upon the determination of which a final adjudication herein is dependent, a new trial is necessary in order to have a jury pass upon that question.

[6][7] On this appeal plaintiff contends for the first time that he is entitled to judgment because, by reason of a negative pregnant in defendant's answer, it is susceptible to the construction that the latter admits that some sum was paid on May 1, 1931, or that the sum of $4.50 was paid on some day within the last six years, or that that sum was paid on the principal on that date. Any possible inference in any of those respects is, however, wholly negatived by the following unequivocal allegations, pleaded by the...