Good v. Ehrlich

• Decision Date: 09 May 1903
• Docket Number: 13,124
• Citation: 72 P. 545,67 Kan. 94
• Parties: ELI GOOD v. JACOB EHRLICH et al
• Court: Kansas Supreme Court

72 P. 545

67 Kan. 94

ELI GOOD v. JACOB EHRLICH et al

No. 13,124

Supreme Court of Kansas

May 9, 1903

Decided January, 1903.

Error from Marion district court; O. L. MOORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIMITATION OF ACTIONS -- Part Payment. A part payment, in order to be efficient to toll the statute of limitations, or to remove the bar, must have been made as part payment of the obligation in question by the obligor, or by some one at his direction, and under such circumstances as to amount to an acknowledgment of an existing liability on such obligation.

2. LIMITATION OF ACTIONS -- Pleading and Practice. Where a plaintiff, for the purpose of removing the bar of the statute of limitations which had apparently run upon his cause of action, pleads that a payment had been made thereon a general denial puts the burden upon him. The defendant need not specially plead the bar of the statute. He will prevail if the plaintiff fail to establish such payment.

Dickerson & Miesse, for plaintiff in error.

Keller & Dean, for defendants in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

Before plaintiff in this action could recover, he must have removed the bar of the statute of limitations which had apparently run on the note upon which his action was based. This he attempted to do by pleading that a payment had been made thereon. He was the purchaser of this note, which had been given to the First State Bank of Marion, from the assignee of that bank. At the time of its purchase there was attached to it by a rubber band a note made by one Waterman, payable to the order of Ehrlich Brothers, the makers of the note purchased. The Waterman note, however, did not bear the indorsement of Ehrlich Brothers, its payees. It was the suspicion of the purchaser, Good, that the Waterman note had, during the life of the bank, been left with the bank by Ehrlich Brothers as collateral to their note. After the statute of limitations had run on the Ehrlich Brothers' note, Good collected from Waterman a part of the money due on his note, as a compromise for the full amount due, and indorsed the same, without the knowledge or consent of Ehrlich Brothers, upon the note in suit. This was the payment relied on to remove the bar of the statute. Was it efficient for that purpose, within the meaning of section 4452, General Statutes of 1901? That section provides:

"When any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought, etc."

The court sustained a demurrer to the plaintiff's evidence. We are well convinced that in this no error was committed. It is only by the remotest deduction that it may be assumed that the Waterman note was left with the bank by Ehrlich Brothers as collateral to their note. Indeed, the evidence seems to us as consistent with the theory that it was left by them for collection and credit to their account, as for collection and payment upon their note. If the former, then of course even the immediate collection and credit upon the note could not have tolled the statute; so that, with this view, we are of the opinion that the court was right in sustaining the demurrer.

But perhaps we should go further and discuss the question as to what constitutes a part payment, and when the making of it would toll the statute; or, as in this case, revive the note, if the statute had run. We will admit, for this purpose, that the Waterman note was deposited by Ehrlich Brothers with the bank as collateral to their note, and held by the bank with authority to collect and apply the proceeds as a payment on this note. While the language of the statute is that a part payment shall operate to toll the limitation, it certainly cannot be understood to mean that such part payment made by any one at any time for any purpose would so operate. It is well recognized in the books that such payment must be made by the obligor, against whom the statute is sought to be tolled, or by some one at his direction, and made as a part payment of the debt under such circumstances as to amount to an acknowledgment of an existing liability. At common law, and in the absence of a statute, a part payment was held to toll the statute, upon the principle that it was an acknowledgment of an existing liability at the time the payment was made. Indeed, this court has recognized that principle, and in effect held that a part payment, so to operate, must rise to the dignity of such an acknowledgment. In Steele v. Souder, 20 Kan. 39, 42, this language is found:

"No valid reason exists why payment should be more potent than acknowledgment or promise. Indeed, payment was treated by the courts as simply an evidence of acknowledgment."

In United States v. Wilder, 80 U.S. 254, 13 Wall. 254, 256, 20 L.Ed. 681, the same point was ruled as follows:

"The principle on which part payment takes a case out of the statute is, that the party paying intended by it to acknowledge and admit the greater debt to be due. If it was not in the mind of the debtor to do this, then the statute, having begun to run, will not be stopped by reason of such payment."

The same principle was announced in Arnold v. Downing, 11 Barb. 554, and Butler v. Price, 110 Mass. 97. See, also, 33 Cent. Dig. § 632.

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