Gillitzer v. Kremer

• Decision Date: 13 January 1931
• Citation: 234 N.W. 503,203 Wis. 269
• Parties: GILLITZER v. KREMER ET AL.
• Court: Wisconsin Supreme Court

203 Wis. 269

234 N.W. 503

GILLITZER

v.KREMER ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1931.

Appeal from a judgment of the Circuit Court for Crawford County; S. E. Smalley, Circuit Judge. Affirmed.

Action commenced January 2, 1929, to recover on a promissory note signed by the defendants, John Kremer and Sam Ducharme, as maker and accommodation maker, respectively. By judgment entered December 30, 1929, plaintiff recovered on the note against both defendants, and Ducharme appealed.Graves & Earll, of Prairie du Chien, for appellant.

Munson & Curran, of Prairie du Chien, for respondent.

FRITZ, J.

The note in suit became due December 1, 1921, and the only question on this appeal is whether the action was barred as to Ducharme by the six-year statute of limitations. Sections 330.15, 330.19, Stats. Interest due on December 1 of each year had been paid by Kremer for the years 1918 to 1927, inclusive, but it was contended on behalf of Ducharme that he had not made or authorized those interest payments, and that he had not continued or renewed his obligation by any written promise or acknowledgment.

By a special verdict the jury found that on October 29, 1927, plaintiff, at the request of Ducharme, extended the time of payment of the note for one year, in consideration of the defendants agreeing to pay 7 per cent. interest. On motions after verdict, the trial court held that there was ample evidence to support that finding, but concluded “that the agreement for extension was void because it was not in writing, was not to be performed within one year, and was not based upon an executed consideration.” See section 330.42, Stats.; Braasch v. Bonde, 191 Wis. 414, 211 N. W. 281;Mair v. Schultz, 194 Wis. 578, 217 N. W. 328. No question has been raised as to that ruling.

The jury also found that in December, 1925, plaintiff told Ducharme that the interest due on December 1, 1925, had not been paid, and that Ducharme then told plaintiff, in substance, that he would get it pretty soon. That finding was also approved by the trial court. On the other hand, undisputed evidence established that, shortly after Ducharme made that statement, the interest due on December 1, 1925, was paid by Kremer. The learned circuit judge concluded that the payment made by Kremer under those circumstances suspended the operation of the statute of limitations as to Ducharme, notwithstanding section 330.47, Stats., which provides that, if there are two or more joint obligors, no one of them shall lose the benefit of the statute of limitations, so as to be chargeable, by reason only of any payment made by any other obligor. It is true that, since the enactment of that statute, a payment by one obligor does not toll the bar of the statute of limitations as to his co-obligor who did not participate in making the payment, providing the latter did not consent to or acquiesce in the payment. McLean v. McLean, 184 Wis. 495, 501, 504, 199 N. W. 459. However, “* * * if a joint debtor, on being called on for payment, refers the person calling on him to his codebtor for payment, this amounts to a...