Eureka Cedar Lumber & Shingle Co. v. Knack

• Decision Date: 21 March 1917
• Docket Number: 13684.
• Citation: 95 Wash. 339,163 P. 753
• Court: Washington Supreme Court
• Parties: EUREKA CEDAR LUMBER & SHINGLE CO. v. KNACK.

163 P. 753

95 Wash. 339

EUREKA CEDAR LUMBER & SHINGLE CO. v. KNACK.

No. 13684.

Supreme Court of Washington

March 21, 1917

Department 2. Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge.

Action by the Eureka Cedar Lumber & Shingle Company against Fred Knack. Judgment for defendant, and plaintiff appeals. Reversed, with directions to enter judgment in accordance with opinion.

Theodore B. Bruener, of Aberdeen, and C. W. Hodgdon, of Hoquiam, for appellant.

Wm. E Campbell, of Hoquiam, for respondent.

PARKER, J.

The plaintiff Eureka Cedar Lumber & Shingle Company seeks recovery of a balance due upon the purchase price of lumber and shingles sold by it to the defendant Fred Knack in the year 1911. Trial in the superior court without a jury resulted in findings and judgment in favor of the defendant rested upon the ground that the action had not been commenced within the time limited by law. From this disposition of the cause, the plaintiff has appealed to this court. The evidence is not before us. We have only to do with the question of what judgment should be rendered upon the facts found by the trial court. The controlling facts appearing in the findings may be summarized as follows: Between February 6 and August 8, 1911, appellant sold and delivered to respondent lumber and shingles of the value of $527.53, which sum respondent promised and agreed to pay therefor. Thereafter respondent made payments thereon on July 11 and December 23, 1911, so that there then remained due and unpaid a balance amounting to $321.68. No further payments or credits were made reducing this balance, as we shall assume for argument's sake until February, 1915, more than three years following the payment made on December 23, 1911. It is therefore apparent that appellant's cause of action is barred by the three-year statute of limitation relating to recovery upon unwritten contracts (section 159, Rem. Code), unless the bar of the statute has been avoided by a credit of $24.50, which was made by appellant upon the account in respondent's favor in February, 1915, which appellant claims was assented to by respondent under such circumstances as to amount to a payment upon the debt and acknowledgment of the balance due thereon at that time. The facts leading up to and attending the making of this credit in respondent's favor are as follows: In October, 1914, appellant placed the account, duly itemized, and also showing an item of $32 drayage in addition to the $321.68 balance, in the hands of its attorney C. W. Hodgdon for collection, and Hodgdon thereupon so notified respondent. Thereafter respondent went to Hodgdon's office, where they went over the items of the account together, 'and the said defendant made no objections to said account as exhibited, and agreed to pay the same [save the drayage item], provided the said plaintiff would deduct from said account the amount of certain work and materials which the said defendant claimed to have performed for and furnished to the said plaintiff some time in the year 1914. That the said Hodgdon promised to take the matter up with the said plaintiff and to advise the said defendant.' Thereafter in compliance with instructions from appellant Hodgdon advised respondent to make out a statement of his claim against appellant, and that if found correct the amount would be deducted from the balance due from him, and 'the said defendant did then and there agree to make out a statement of his said account for said work and labor performed and materials furnished, and also then and there promised and agreed to pay the balance of said account which had been exhibited to him by the said Hodgdon as hereinabove stated, just as soon as he could.' Thereafter early in February, 1915, respondent handed the statement of his claim to Hodgdon and 'requested the said Hodgdon to credit his account with the amount of said statement, being in the sum of $24.50, which the said Hodgdon then and there agreed to do.' 'The said defendant then and there again promised to pay the balance of said account shortly. On February 15, 1915, the said Hodgdon notified the said defendant, by letter, that his account against the plaintiff, in the sum of $24.50, was correct, and that he, the said Hodgdon, had given the said defendant credit.' Thereafter respondent having refused to pay the balance due upon appellant's account, this action was commenced on the 28th day of February, 1915.

Contention is made in appellant's behalf that the findings of the trial court render it plain that the understanding between respondent and Hodgdon as attorney for appellant, and the credit given respondent in pursuance thereof had the same legal effect as if respondent had actually paid $24.50 in cash in February, 1915, and requested credit therefor upon appellant's account. We think there is no escape from this interpretation of the dealings between respondent and Hodgdon, as found by the trial court. Plainly the $24.50 was an existing debt in favor of respondent and against appellant, and was claimed as such by respondent. It was also a debt having no connection with appellant's claim, and was not barred by the statute of limitation, as appellant's claim would have been but for the credit so given. Clearly respondent intended that such credit should have the same effect as a cash payment upon his debt to appellant. The facts found by the trial court as to respondent's promises made in connection with the giving of the credit, we think, leave little room for controversy upon this question of fact.

Did the fact that this payment of $24.50 was so made by respondent after the statute had fully run its three-year course remove the bar of the statute? We think it did. The sections of Rem. Code relating to extension of the time of the running of and the removal of, the bar of the statute after it has run its course are the following:

'No acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.' Section 176, Rem. Code.

'When any payment of principal or interest has been or shall be made upon any existing contract, whether it be a bill of exchange, promissory note, bond, or other evidence of indebtedness, if such payment be made after the same shall have become due, the limitation shall commence from the

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