Eichman v. Culver

• Decision Date: 16 October 1934
• Docket Number: Case Number: 22579
• Citation: 1934 OK 526,169 Okla. 495,37 P.2d 640
• Parties: EICHMAN v. CULVER.
• Court: Oklahoma Supreme Court

1934 OK 526

37 P.2d 640

169 Okla. 495

EICHMAN v. CULVER.

Case Number: 22579

Supreme Court of Oklahoma

Decided: October 16, 1934

Syllabus

¶0 Limitation of Actions--Statute not Tolled as to Maker of Note by Payment There on Made by Comaker.

A credit on a note to toll the statute of limitation must be a voluntary payment, and a payment there on by a comaker without authority from the one sought to be charged does not tell the statute as to the latter, for the reason that it does not constitute on his part n new promise to pay or a new acknowledgment of the indebtedness.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by N. F. Elehman against Harry Culver. Judgment for defendant, and plaintiff appeals. Affirmed.

Morris & Wilhite, for plaintiff in error.

Nowlin, Spielman & Thomas, for defendant in error.

PER CURIAM.

¶1 The plaintiff in error, who was plaintiff below, and the defendant in error, who was defendant below, will be herein designated as they appeared in the lower court.

¶2 This suit, which was filed on February 28, 1930, is upon two causes of action, each upon a promissory note executed by the defendant and one Whittier, to the plaintiff. The note sued on in the first cause of action was due on June 21, 1923. That sued on in the second cause of action was due on May 20, 1923.

¶3 Plaintiff alleged that payments were made on the note sued on in the first cause of action by. Whittier, comaker of defendant, on September 26, 1923, and on March 10, 1925, and that a payment was made, also by Whittier, on the note sued on in the second cause of action on March 10, 1925. Each note contained the following provision:

"We the makers and indorsers of this note hereby severally waive presentment for pay merit, notice of nonpayment protest and notice of protest and consent that time of payment may be extended without notice thereof."

¶4 Defendant's answer to each cause of action consisted of a general denial and a specific denial that the payments alleged to have been made by Whittier were made by him, or by any person in behalf of defendant, and a plea of the statute of limitations. The answer was sworn to, but there was no specific denial under oath of the execution of either note.

¶5 By leave of court this answer was withdrawn and a demurrer was filed to each cause of action. The demurrer having been overruled, defendant excepted and refiled his answer.

¶6 At the trial, the defendant objected to the introduction of any evidence upon either count upon the ground that the petition did not state facts sufficient to constitute a cause of action, in that the action was barred by the statute of limitations. The objection was sustained, as was also the demurrer of plaintiff to the answer of defendant. which had previously been overruled, and judgment for defendant was rendered upon both causes of action.

¶7 The actions are barred by the first subdivision of section 101, O. S. 1931, unless the payments by Whittier have the effect of tolling the statute as to Culver.

¶8 Counsel for plaintiff state in their brief:

"We are not unmindful of the rule supported by the weight of authority that, a payment by one of several joint and several makers of a note without the consent of the other will not extend the time of payment."

¶9 We agree with counsel for plaintiff as to the weight of authority. The rule is so stated in Corpus Juris, which cites in support thereof decisions by the courts of Alabama, Indiana, Maine. Michigan, Montana, New York, Pennsylvania, Wyoming, Illinois, Kansas, Massachusetts, Minnesota, New Hampshire, Ohio and Washington. 37 Corpus Juris, 1163, note 53.

¶10 This precise point has never been passed upon by this court. In the case of Kelsay v. Kelsay Land Co., 64 Okla. 291, 166 P. 173, cited by defendant, the payment relied upon to toll the statute was not made by a party to the note.

¶11 This court has, however, recognized the principle that a payment, in order to toll the statute, must be a voluntary payment made by the party sought to be charged, or by someone having authority from him so to do. The payment tolls the statute because it constitutes an acknowledgment of the debt. If it is made by some one without authority from the person sought to be charged, it is obvious that it cannot have that effect.

¶12 In the case of Berry v. Oklahoma State Bank, 50 Okla. 484, 151 P. 210, the question was whether a credit given upon a note by the application of the sale of securities by the creditor would toll the statute. We quote the second syllabus of that case:

"A credit on a note to toll the statute must be a voluntary payment. And the application, by the holder of the note, of the proceeds of the sale of securities hypothecated at the time of the making of the note, as a credit on the note, does not toll the statute, for the reason that it does not constitute a new promise to pay, or a new acknowledgment of the indebtedness. But is only an enforcement of the original obligation and promise."

¶13 Applying the same reasoning to the instant case, the law applicable may be stated as follows: A credit on a note to toll the statute must be a voluntary payment and a payment there on by a comaker without authority from the one sought to be charged does not toll the statute as to the latter; for the reason that it does not constitute on his part a...