Gorrill v. Goff

• Decision Date: 10 December 1938
• Docket Number: 33982.
• Citation: 84 P.2d 953,148 Kan. 765
• Parties: GORRILL v. GOFF.
• Court: Kansas Supreme Court

84 P.2d 953

148 Kan. 765

GORRILL v. GOFF.

No. 33982.

Supreme Court of Kansas

December 10, 1938

Syllabus by the Court.

In action on note, wherein the only issue was whether there had been an express oral ratification of credit indorsement entered on note by payee so as to toll the statute of limitations, court properly sustained payee's motion to set aside the general verdict in favor of the maker and to render judgment in favor of the payee on the special verdict that maker knew that payee had placed a credit indorsement on the note but made no objection or protest, since the special verdict disclosed an express oral ratification. Gen.St.1935 60-312.

The statute of limitations may be tolled by payment, by acknowledgment of the debt in writing signed by the person to be charged thereby, or by a promise in writing to pay the debt, signed by the person to be charged thereby. Gen.St.1935, 60-312.

A credit indorsement made on the note by a payee without the original knowledge or consent of the maker may be orally ratified, and when so ratified by the maker is as binding on him as though he had originally made the payment under circumstances amounting to an acknowledgment of the debt. Gen.St.1935, 60-312.

1. Under the provisions of G.S.1935, 60-312, the statute of limitations may be tolled by payment. A credit endorsement made by the payee without the original knowledge or consent of the maker may be orally ratified and when so ratified by the maker, is as binding upon him as though he had originally made the payment under circumstances amounting to an acknowledgment of the debt.

2. The record in an action upon a promissory note examined and held (1) the motion to set aside the general verdict in favor of the defendant and to render judgment in favor of the plaintiff upon the special verdict was properly sustained (2) the special verdict disclosed an express oral ratification of the credit endorsement entered on the note by the payee.

Appeal from District Court, Douglas County; Hugh Means, Judge.

Action on a note by M. A. Gorrill against Melvin H. Goff. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

WEDELL J., dissenting.

A. B. Mitchell, of Lawrence, for appellant.

M. A. Gorrill, Henry H. Asher, and Clarence M. Gorrill, all of Lawrence, for appellee.

WEDELL Justice.

This was an action on a promissory note. Judgment went for plaintiff and the defendant has appealed.

Appellee urges the appeal should be dismissed. The court permitted oral arguments on the merits after appellant had amended his abstract to include specifications of error. It gave appellee additional time to file a counter abstract and brief. The latter has been filed. No motion for a new trial was filed by appellant but the opinion will disclose facts showing no motion for a new trial was necessary. We shall, therefore, decide the case on its merits.

The only issue involved is whether the action was barred. That depends upon whether a certain credit placed upon the note by the owner and holder thereof, together with circumstances and facts to be hereafter narrated, tolled the statute of limitations. The note bore date of March 1, 1928, and was due March 1, 1930. It contained certain credits which are not disputed. The credit entry endorsed by the holder of the note and here involved was the last one, which reads: "October 1, 1932 --Paid on Int. and Principal by credit of acct. $60.10."

Defendant's answer denied he had made such partial payment, alleged such credit was endorsed upon the note without his knowledge or consent and denied the entry by plaintiff constituted a partial payment upon the note. The answer further asserted the claim was barred by the statute of limitations. Plaintiff filed a reply alleging facts designed to constitute ratification of the credit entry and further alleged such facts constituted an estoppel to the defense pleaded.

A general verdict was rendered for the defendant. Special questions covering the issues of fact thus joined were submitted to the jury. The special verdict was as follows:

"1. Q. Were the defendant, Melvin H. Goff, and one Max Wiedemann in partnership on or about October 1, 1932, and did they have an account, at that time, for $80.10 against the plaintiff, M. A. Gorrill, for repairs, (parts) and labor upon his automobile? A. Yes.

"2. Q. If you answered question No. 1 in the affirmative, was a statement of this account presented by Max Wiedemann on or about October 1, 1932, to Mr. Gorrill for payment? A. Yes.

"3. Q. Was there on, or shortly after, October 1, 1932, an entry made on the partnership books of Wiedemann and Goff, of a charge to the defendant, Melvin H. Goff, of $60.10, for credit by plaintiff, Gorrill, on his note against Goff? A. No.

"4. Q. Did the defendant, Melvin H. Goff, know on October 1, 1932, or immediately thereafter that the bill of Wiedemann and Goff, had been presented and that the plaintiff had given credit on his note for the sum of $60.10 and paid $20.00 by check to the partnership of Wiedemann and Goff? A. Only by Wiedemann's statement.

"5. Q. Did the defendant, Melvin H. Goff, at any time or times go to the office of M. A. Gorrill and examine said note with the said credit of $60.10 indorsed thereon and ascertain the balance due on said note after the application of said credit and state to the said M. A. Gorrill that, 'I guess it is all right'? A. No evidence that note was examined by Goff.

"6. Q. Did the defendant, Melvin H. Goff, at any time or in any of the conversations had between him and the said plaintiff, M. A. Gorrill, raise any objection or make any protest against the indorsement of said credit upon said note? A. No.

"7. Q. Did the said M. A. Gorrill at any time prior to the filing of this action, have any knowledge or notice communicated to him, by word or action, of the said Melvin H. Goff, that the said Melvin H. Goff did not acquiesce in or approve of the making of said credit on said note? A. No.

"8. Q. Was the conduct of the said Melvin H. Goff from October 1, 1932, up to the time of filing this suit, such as to cause any ordinary person to believe that he acquiesced in and approved the application of said credit upon said note? A. No.

"9. Q. Did Goff know of the fact that Gorrill had placed a credit of $60.10 on the note? A. Only by Wiedemann's statement.

"10. Q. If you answer question No. 9 'yes', then did Goff later ratify such credit by word or act? A. No.

"11. Q. If you answer question No. 10, 'yes', then state, what Goff did to ratify such credit? A.--". (Italics inserted.)

Appellee filed a motion to set aside the general verdict and for judgment in his favor upon the special verdict. He also filed a motion for a new trial. The former motion was sustained and the latter motion overruled. In order that the reader may have a clear understanding of exactly what the pertinent portion of the journal entry contained, we quote the following:

"And the court after considering all of the evidence and being fully advised in the premises, finds that the motion of the plaintiff to set aside the general verdict in this cause, heretofore rendered by the jury, and to render judgment for the plaintiff upon the special verdict heretofore rendered by the jury should be sustained and that the plaintiff is entitled upon the evidence and said special verdict to a judgment as prayed for and that the motion of the plaintiff for a new trial should be overruled.

"It is, therefore, ordered, adjudged and decreed by the court that the general verdict heretofore rendered by the jury in this cause be and the same is hereby set aside and held for naught, and that upon the special verdict the plaintiff have and recover a judgment against the defendant," * *

Appellant's first specification of error is, the trial court erred in rendering judgment for the plaintiff (appellee) upon the record. The second specification of error is, the trial court erred in overruling the defendant's (appellant's) motion for judgment upon the special questions and general verdict. The journal entry does not recite the latter motion. It may have been made orally. The record does not disclose. That such motion was made appellee does not deny, its brief being silent in that regard.

We shall now discuss the first specification of error, namely, that the trial court erred in rendering judgment for the plaintiff upon the record. The fact-finding portion of the journal entry is confusing in this regard. It will be observed it first finds plaintiff's motion to set aside the general verdict and to render judgment for plaintiff upon the special verdict should be sustained. It then follows with the statement, "The plaintiff is entitled upon the evidence and said special verdict to a judgment as prayed for." (Italics inserted.) In the judgment portion of the journal entry, the general verdict is set aside and judgment is rendered in favor of the plaintiff upon the special verdict alone.

It is appellant's contention that in view of the fact the special verdict expressly covered the pertinent issues of fact, the general verdict must stand unless the special verdict compels it to fall. He urges the special verdict does not have that effect and that it is in harmony with the general verdict. He contends specific issues of fact were clearly joined by the pleadings and that it was the province of the jury to determine those facts. He urges the jury did determine each of the salient facts relative to both the original right of the plaintiff to credit the payment on the note and whether defendant subsequently ratified such payment. He insists those questions of fact, and especially the question of ratification of the credit, which is the...