First State Bank of Loco v. Lucas

• Decision Date: 05 June 1934
• Docket Number: Case Number: 22302
• Citation: 1934 OK 340,33 P.2d 622,168 Okla. 406
• Parties: FIRST STATE BANK OF LOCO v. LUCAS.
• Court: Oklahoma Supreme Court

1934 OK 340

33 P.2d 622

168 Okla. 406

FIRST STATE BANK OF LOCO v. LUCAS.

Case Number: 22302

Supreme Court of Oklahoma

Decided: June 5, 1934

Syllabus

¶0 1. Limitation of Actions--Partial Payment Operating as New Promise Avoiding Bar of Statute.

A partial payment, in order to operate as a new promise so as to avoid the bar of the statute of limitation, must be made under such circumstances as to warrant the clear inference that the debtor recognizes the debt as an existing liability and indicates his willingness or at least an obligation to pay the balance. The debt or obligation must be definitely pointed out by the debtor and an intention to discharge it made manifest.

2. Trial--When Demurrer to Plaintiff's Evidence Properly Sustained.

Where there is no competent evidence which is sufficient from any angle to establish a right to recovery or to a verdict or judgment in favor of the plaintiff, a demurrer thereto is properly sustained.

Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by the First State Bank of Loco against J. E. Lucas. Judgment for defendant, and plaintiff appeals. Affirmed.

Mont F. Highley and L. D. Threlkeld, for plaintiff in error.

Warren K. Snyder and Lindsay Hawkins, for defendant in error.

BAYLESS, J.

¶1 This is an action in which the plaintiff in error, First State Bank of Loco, Okla., sued the defendant in error, J. E. Lucas, on two notes and a written agreement on which certain credits were indorsed. Defendant, J. E. Lucas, interposed a general denial and specially denied having made the payments indorsed on said note and agreement or either of them, and pleaded the statute of limitations in bar thereof, alleging that the credits shown on said notes and agreement were false and fictitious and made long after the bar of the statute had fallen thereon and for the sole purpose of trying to evade it. This answer was duly verified. A verified reply was filed thereto.

¶2 At the close of plaintiff's evidence the court directed the jury to return a verdict in favor of the defendant. It is to reverse this action that this appeal is prosecuted.

¶3 The contention of plaintiff in error is set out in its brief as follows:

"The proposition relied upon by the plaintiff for the reversal of this case may be summed upon in that the court erred in not submitting to the jury the question in regard to whether or not the payment of $ 95, which was made by the defendant to the payee on the note, was intended to be a voluntary payment and was intended to revive the evidence of the indebtedness which upon its face would have been barred by the statute of limitations but for the payment."

¶4 The notes and agreement in question were executed on March 8, 1920, by the defendant to one C. P. Toohey, as payee, who held them until about December 16, 1928, at which time he indorsed them without recourse to the plaintiff bank. It appears that on or about May 1, 1920, Toohey came into the possession of certain tools belonging to the defendant, Lucas, and that about a year thereafter he had an agreement with Lucas whereby the value of these tools would be credited on this indebtedness, and these credits were made as of May 1, 1920. One of the notes came due a day after date, one four months after date, and the agreement when a certain well named therein should have been completed. The evidence shows that this happened a few days after the agreement was executed; so that long prior to December, 1928, the bar of the statute had fallen on all of the papers. It appears to be conceded both by the appellant and the appellee that unless the $ 95 which was paid by Lucas to Toohey in December, 1928, was such payment on the indebtedness as would revive it under section 191, C. O. S. 1921 (sec. 107, O. S. 1931), the action was barred. The plaintiff in error contends, however, that the evidence of plaintiff was sufficient to entitle it to go to the jury with this question. In support of this contention, plaintiff in error cites American Surety Co. of New York v. Steele, 84 Okla. 166, 203 P. 1043; Preston v. Hockaday Hdw. Co., 137 Okla. 283, 279 P. 332; and Thompson v. Martin, 138 Okla. 138, 280 P. 589, construing section 191, C. O. S. 1921, supra.

¶5 From an examination of these authorities it is obvious that the statute of limitation may be tolled in three ways; First, by payment of part of the principal or interest; second, by an acknowledgment in writing of an existing liability, signed by the party to be charged; or third, by a promise of payment in writing signed by the party to be charged; and it is sufficient that any one of these conditions shall exist.

¶6 The record shows that after the execution and delivery of the notes and agreement...