Fisher v. Pendleton

• Decision Date: 07 March 1959
• Docket Number: No. 41238,41238
• Citation: 184 Kan. 322,336 P.2d 472,74 A.L.R.2d 1274
• Parties: , 74 A.L.R.2d 1274 Sherla Lee FISHER, Appellant, v. Nelle PENDLETON, Appellee.
• Court: Kansas Supreme Court

Page 472

336 P.2d 472

184 Kan. 322, 74 A.L.R.2d 1274

Sherla Lee FISHER, Appellant, v. Nelle PENDLETON, Appellee.

No. 41238.

Supreme Court of Kansas.

March 7, 1959.

Syllabus by the Court

1. Under the provisions of G.S.1949, 60-312, where husband and wife jointly execute a promissory note, as principals, circumstances may arise which toll the statute of limitations as to the one although part payment was ostensibly made by the other. Thus, if a wife knows and consents to a payment by her husband, or directs or requests her husband to make a payment, or ratifies such payment, such circumstances will interrupt the running of the statute of limitations as to her, or vice versa.

2. In the situation described in Syllabus p1, a part payment to toll the statute of limitations under the provisions of G.S.1949, 60-312, need not be in writing. Payment is an executed acknowledgment which speaks for itself and requires no writing to establish it. Such payment repesents an acknowledgment which admits the greater debt to be due, and from which the trier of the facts would be warranted in finding an implied promise to pay the balance.

3. In an action on a promissory note, bearing a receipt of money endorsed on the back thereof, in order to remove an apparent bar of the statute of limitations the petition must allege payment by the debtor.

4. Under the circumstances set forth in the opinion, an order of the trial court striking appellant's 'First Amended Petition' from the files was a final order.

5. Where the trial court sustained a demurrer to the plaintiff's petition, as amended, and later struck the plaintiff's 'First Amended Petition', filed without leave prior to the trial court's ruling on such demurrer, and subsequent thereto a valid appeal is perfected from the order striking the 'First Amended Petition' from the files, the provisions of G.S.1949, 60-3310, confer discretionary power upon the appellate court to permit amendment of the notice of appeal to include the order sustaining the demurrer, from which appeal could have been properly taken pursuant to the provisions of G.S.1957 Supp., 60-3314a, even though such ruling was made more than two months prior to the perfecting of such appeal.

6. In an action on a promissory note such as described in Syllabus p1 against the wife, it is held that the trial court erred in sustaining defendant's demurrer to the petition, as amended, and it is further held that the trial court in the exercise of its power of discretion under the provisions of G.S.1949, 60-759, upon all the facts, conditions and circumstances presented by the record, abused its discretion in striking the 'First Amended Petition' from the files.

Harry Gillig, Calvin L. McMillan and Thad Hanna, Wichita, were on the brief for appellant.

Robt. L. NeSmith, Justus H. Fugate and James B. Grant, Wichita, were on the brief for appellee.

SCHROEDER, Justice.

This is an appeal from an order of the lower court sustaining a demurrer to plaintiff's petition, as amended, seeking recovery on two promissory notes jointly executed by the defendant and her husband, and from an order striking the 'First Amended Petition' from the files.

The underlying question of law is whether partial payment by one joint debtor (the husband) is sufficient to take the case out of the statute of limitations as to the other joint debtor (defendant wife) upon the allegations and circumstances presented by the record herein.

The appellant, Sherla Lee Fisher, brought an action for recovery on two promissory notes. It was filed on the 21st day of October, 1957. The first cause of action sought recovery on a promissory note dated September 30, 1936, in the principal sum of $1,000. The last payment on said note is alleged to have been made as follows:

'* * * that the Defendant did on the 27th day of December, 1952, pay to this Plaintiff the sum of One and no/100 ($1.00) Dollars, which sum was to be applied on said note * * *'

In the second cause of action the appellant seeks to recover on a promissory note dated August 1, 1950, in the principal sum of $1,139.50. The last payment on said note is alleged to have been made as follows:

'That the Defendant has paid to this Plaintiff * * * the sum of Five and no/100 ($5.00) Dollars on December 3, 1955, which sum was to be applied on said note, * * *'

Copies of the respective notes were attached to the petition and made a part thereof. Each was a joint note signed by Nelle Pendleton (defendant-appellee) and Iris Pendleton, her husband. The payments made on each note were endorsed on the reversed side thereof and each, respectively, indicated the last payment as above set forth.

The plaintiff (appellant) relies upon the subsequent payments as above indicated to avoid the statute of limitations.

On November 18, 1958, the defendant filed her motion to make definite and certain wherein the court was requested to require that the plaintiff state how and in what manner, and by whom the last payments on the notes were made. Counsel for the plaintiff announced in open court upon the hearing of the motion that he would supply the information sought. Thereupon the trial court overruled the motion. This is evidenced by a journal entry filed December 23, 1957, wherein it was recited that the plaintiff supplied the defendant with the following information:

'Payment of December 27, 1952 in the sum of $1.00, on the note identified as Exhibit 'A' in plaintiff's petition, as it relates to the First Cause of Action, was made by Iris Pendleton to the plaintiff;

'Payment of December 3, 1955 in the sum of $5.00, on the note identified as Exhibit 'B' in plaintiff's petition, as it relates to the Second Cause of Action was made by Iris Pendleton to the plaintiff.'

The journal entry further recited that the parties stipulated 'that the above statements may be considered as amendments to plaintiff's petition as though fully incorporated therein.' The defendant was given ten days in which to demur or answer.

The hearing on the above motion was conducted on the 2nd day of December, 1957, and the rulings were announced in open court as of that date. On December 11, 1957, the defendant filed a demurrer attacking each cause of action on the ground that the petition, as amended, did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant and for the further reason that the petition, as amended, showed on its face that the respective causes of action were barred under the provisions of G.S.1949, 60-306.

On January 11, 1958, the plaintiff filed what is denominated a 'First Amended Petition'. Insofar as the allegations set forth therein are material to this appeal, they allege with respect to the first cause of action:

'5. That all the above payments were made to the Plaintiff, Sherla Lee Fisher, by Defendant's husband, Iris Pendleton, now deceased; that said payments were made with the full knowledge and consent of the Defendant, Nelle Pendleton; that said Defendant knew or had reason to know that said payments would renew her liability on said note; that said Defendant did, on or about November 1956, and subsequent to the death of her husband, Iris Pendleton, verbally acknowledge her liability on said note to the Plaintiff in this action.'

It further alleged with respect to the second cause of action:

'3. That all of the above payments were made to the Plaintiff by the Defendant's husband, Iris Pendleton, now deceased; that said payments were made with the full knowledge and consent of the Defendant, Nelle Pendleton; that said Defendant knew, or had reason to know that said payments would renew her liability on said note; that the Defendant, Nelle Pendleton, did on or about November 1956, and subsequent to the death of her husband, Iris Pendleton, verbally acknowledge her liability on said note to the Plaintiff in this action.'

This so-called 'First Amended Petition' was filed without prior leave of court and more than ten days after the defendant's demurrer was filed.

On the 13th day of January, 1958, the trial court sustained the defendant's demurrer to both the first and second causes of action.

Thereafter the defendant on the 18th day of January, 1958, filed a motion to strike the 'First Amended Petition'. This motion was sustained by the court on March 14, 1958. The plaintiff perfected her appeal from this order on May 6, 1958, but did not include in her notice of appeal the order sustaining the demurrer to the original petition, as amended, although specified as error in her abstract. On October 17, 1958, after expiration of the time for appeal from the order sustaining the demurrer, but long before the submission of this case, the appellant moved this court for leave to amend her notice of appeal to include such order. Pursuant to authority under G.S.1949, 60-3310, leave was granted appellant to amend accordingly. Appellee's objections thereto were overruled with leave to renew such objections at the hearing on the merits.

An intelligent approach to the interwoven questions presented requires a review of the underlying proposition of law.

In England it was held at an early date that a payment by one of two or more joint debtors was sufficient to suspend the statute of limitations as to all of his co-obligors. Payment by one was regarded as payment for all, the one acting virtually as agent for the rest. Whitcomb v. Whiting, [1731], 2 Doug. [K.B.] 652, 99 Eng.Rep. 413. In the absence of statute the majority of the states in the United States have refuted the rule of Whitcomb v. Whiting, supra.

The Kansas Supreme Court as early as 1878 in the case of Steele v. Souder, 20 Kan. 39, held that partial payment made by one debtor on a note, will not suspend the running of the statute of limitations in favor of the other debtors thereon, although the party paying be the principal debtor, and the others only sureties. In that case Justice Brewer...