Eastman v. Crary

• Decision Date: 28 January 1930
• Citation: 284 P. 280,131 Or. 694
• Parties: EASTMAN v. CRARY. [*]
• Court: Oregon Supreme Court

284 P. 280

131 Or. 694

EASTMAN v. CRARY. ^[*]

Supreme Court of Oregon

January 28, 1930

Department 2.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by Amy H. Eastman, as executrix of the last will and testament and estate of C. A. Eastman, deceased, against Jay D. Crary. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Robert L. Jewell and A. E. Clark, both of Portland (Clark & Clark, of Portland, on the brief), for appellant.

Blaine Hallock, of Baker (Nichols, Hallock & Donald, of Baker, on the brief), for respondent.

BELT, J.

This is an action commenced on March 9, 1928, by the executrix of the estate of C. A. Eastman, deceased, to recover amount alleged to be due on four promissory notes, dated January 13, 1911 each in the sum of $14,665.10, due respectively 1, 2, 2 1/2 and 3 years after date. It is alleged that no part of said notes, which were executed in the state of Washington, has been paid, except that, on November 17, 1925, the sum of $37.50 was paid by the defendant on each of the notes. Defendant admits the execution and delivery of the notes denies the payment alleged, and pleads as an affirmative defense the statutes of limitation of Oregon and Washington as a bar to the action. Verdict and judgment were had for the defendant.

Plaintiff appeals, assigning as error the giving of certain instructions, one of which is the following requested by defendant:

"Before you can find in this case that payments on these notes, if any were made, were intended to toll the statute of limitations and revive the outlawed obligation, you must be satisfied by clear and convincing evidence that the payments were made under such circumstances as were intended by the defendant to amount to a payment upon the debt and an acknowledgment of the balance due thereon at that time. The payment must have been made under such circumstances as to show an intentional acknowledgment by the defendant of his liability for the old debt as of the date of such payment, from which arises a new implied promise supported by the original consideration to pay the residue."

In various other parts of the charge, the court, in referring to the degree of proof, stated that it was incumbent upon the plaintiff to establish the alleged payment essential to revive the debt by "clear and convincing evidence." Appellant contends that these instructions violated subdivision 5 of section 868, Or. L., which provides:

"That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory, the finding shall be according to the preponderance of evidence. * * *"

The identical question was considered in Kelley v. Joslin et al., 123 Or. 253, 261 P. 413, 415, where the court, in referring to the above statute, said that it was conclusive on the subject, and that "any instruction which goes beyond this, by the addition of such words as 'clear' or 'fair,' has a tendency to mislead the jury, and is therefore erroneous." Regardless of what may be the holding in other jurisdictions, the case cited is decisive of the one at bar. Also see Carty v. McMenamin & Ward, 108 Or. 489, 216 P. 228. Such error compels, as in the Kelley Case, a reversal of the judgment and the remanding of the cause for a new trial.

The following requested instruction was given by the court:

"Obligations otherwise enforceable may be barred by the statute of limitations, and when, as in this case, defendant pleads such a statute as a defense he is entitled to the full benefit of its provisions.

"A defense of the statute of limitations is not unconscionable but is entitled to the same consideration as any other defense. It is a legislative declaration of public policy and should be treated with respect."

The first paragraph of the above instruction, while perhaps not warranting a reversal, is subject to criticism, in that it is argumentative and unduly stresses the statute of limitations as a defense. The second paragraph of the instruction is a clear and accurate statement of the law, and, in our opinion, would have been sufficient.

The vital issue in the case was: Did the defendant voluntarily make a part payment on the notes, as alleged in the complaint, with the intention then and there to acknowledge the balance due thereon? If he did make such payment, it would have the legal effect of removing the bar to the action created by statute. When a part payment is made under circumstances indicating an acknowledgment of a larger debt remaining unpaid, the law implies a promise on the part of the debtor making the payment to pay the balance, and the statute, on revival of the debt, commences to run from the date of such payment. If, on the other hand, the payment was made under circumstances not indicating an intention of the defendant to acknowledge balance due on the notes, the statutory bar applies. The principle upon which part payment takes a case out of the statute is that the party paying intended by it to acknowledge and admit a greater debt to be due.

As stated in Wood on Limitations (4th Ed.) § 97, quoted with approval in Harding v. Grim, 25 Or. 506, 36 P. 634, 635:

"In order to make a money payment a part payment within the statute, it must be shown to be a payment of a portion of an admitted debt, and paid to, and accepted by the creditor as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment of more being due, from which a promise may be inferred to pay the remainder. If the payment was intended by the debtor to be a payment of all that was due, the circumstance of the creditor's having received it, and treated it as a part payment only, will not bring it within the statute."

Defendant asserts, assuming that error was committed as assigned, that appellant is in no position to complain for the reason that...