Investment & Securities Co. v. Bunten

• Decision Date: 18 June 1940
• Docket Number: 2155
• Citation: 103 P.2d 414,56 Wyo. 77
• Parties: INVESTMENT & SECURITIES CO. v. BUNTEN
• Court: Wyoming Supreme Court

103 P.2d 414

56 Wyo. 77

INVESTMENT & SECURITIES CO. v. BUNTEN

No. 2155

Supreme Court of Wyoming

June 18, 1940

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by the Investment & Securities Company against J. C. Bunten on a note. From an adverse judgment, the defendant appeals.

Affirmed.

For the appellant, there was a brief and oral argument by Richard J Jackson of Cheyenne.

Statutes pertinent to this controversy are sections 89-408, 409, R. S 1931. The action was barred by limitations. Houghton Bros. v. Yocum, 40 Wyo. 57. Plaintiff contends that the statute was tolled by a promise or acknowledgment by defendant in writing. There is a distinction between an acknowledgment made before the bar of the statute has attached, and an acknowledgment made thereafter. Cowhick v. Shingle, 5 Wyo. 87; Smith v. Smith, 39 Wyo. 107; Bell v. Morrison, 1 Peters 351; Moore v. Bank, 6 Peters 86; Andrew v. Kennedy, 45 P. 485; Clatsman v. Glenn, 188 P. 888; American Surety Company v. Steele (Okla.) 203 P. 1043; Hanson v. Towle, 19 Kan. 273. The acknowledgment must be an unqualified admission of an existing debt. Elder v. Dyer, 26 Kan. 604; Corbett v. Hoss (Kan.) 157 P. 1195; Liberman v. Gurensky, 67 P. 998; Bank v. Guse, 98 P. 1127. Modern interpretation favors a more liberal construction of such statutes. Koop v. Cook, 135 P. 316; 19 Am. & Eng. Ency. L. (2d Ed.) 151. Other cases are collected and appear in notes to 37 C. J. 1107-1140. Defendant's letters did not identify the note and none of them constituted a promise to pay.

For the respondent, there was a brief and oral argument by Clarence A. Swainson of Cheyenne.

The statutes applicable are Sections 89-408, 409 and 421. The action was properly brought upon the original obligation and not upon a new promise to pay. Appellant cites Cowhick v. Shingle, 5 Wyo. 87 as holding to the contrary. It was not necessary for the petition to negative the bar of the statutes. Bank v. Clause, 13 Wyo. 173. The note did not mature until May 25, 1933, and the Statutes of Limitations did not begin to run until that date. Ingersoll v Davis, 14 Wyo. 120; Houghton Bros. v. Yocum, 40 Wyo. 57. The letters relied on by respondent were written before the bar of the statute had attached. The following cases are in point: Southern Pac. Co. v. Prosser (Cal.) 55 P. 146; Griffin v. Lear (Wash.) 212 P. 274. An acknowledgment before the statute has run vitalizes the old debt, while an acknowledgment after the statute has run gives a new cause of action, for which the old debt is a consideration. Wood on Limitations, Vol. 1, p. 434, 4th Ed.; Custy v. Donlan (Mass.) 34 N.E. 360; Dern v. Olsen (Idaho) 110 P. 164; Elder v. Dyer, 26 Kans. 604. The authorities cited by appellant as against the sufficiency of his letters of acknowledgment are not exactly in point on the facts. The language of these letters clearly admits the existence of a debt owing to plaintiff. Chidsey v. Powell (Mo.) 4 S.W. 446; Casket Company v. Estrada (Tex.) 116 S.W. 113; Pracht v. McNee (Kans.) 18 P. 925; Cosandier v. Junod, 274 P. 276; Baker v. Christy (Okla.) 44 P.2d 16; Bloom v. Kern, 30 La. Ann. 1263; Cochran v. Lumber Co. (Tex.) 82 S.W.2d 684. The correspondence is to be construed as an entirety. Hayden v. Banking Corporation, 41 F.2d 107; Griffin v. Lear (Wash.) 212 P. 271; Hottell v. Kemp, 31 P.2d 64; Galvin v. O'Gorman (Mont.) 106 P. 887. Defendant had only one note with The Old National Bank and his letter referred to that note. The judgment below should be affirmed.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This cause comes to this court by direct appeal from a judgment of the district court of Laramie County in favor of the Investment and Securities Company, a corporation, as plaintiff below and respondent here, and against J. C. Bunten, as defendant, the party last mentioned as appellant claiming error.

The action was instituted January 13, 1939, upon a promissory note, which reads:

"Spokane, Washington, January 24, 1933 $ 600.00

Ninety days after date for value received I promise to pay to the order of The Old National Bank & Union Trust Co. Six Hundred Dollars with interest at the rate of 8 per cent per annum from maturity also reasonable attorney's fee in any action brought on this note.

This note is payable at The Old National Bank & Trust Co. Spokane, Washington.

No. 6771 (Signed) J. C. Bunten

Due May 25, 1933 Cheyenne, Wyoming"

This note carries on its reverse side the following endorsements:

"Pay to order of Bonded Adjustment Company for collection only

Investment and Securities Co.

By E. B. Hutcheck

Vice President

Without Recourse

Bonded Adjustment Company

By W. W. Clarke

Pres.

Without Recourse

Pay to the order of Investment & Securities Co. Old National Bank & Union Trust Co. of Spokane

By R. W. Jones

Ass't Cashier"

The defense interposed to the action, and with which we are here concerned, was the bar of the statute of limitations, the allegation in that respect being in defendant's pleaded second defense of his answer:

"Defendant further alleges that said alleged indebtedness was contracted in the State of Washington while defendant was a resident of that state; that the said alleged indebtedness was payable in the City of Spokane, State of Washington; that defendant subsequently became and now is a resident of the State of Wyoming, and that defendant has been a resident of this state continuously for more than five years prior to the commencement of this action, and said plaintiff is therefore barred and estopped from maintaining said action."

The defendant's third defense was similar except in lieu of the words "was contracted in the State of Washington" the words "was incurred and accrued in the State of Washington" are used.

Replying to these defenses the plaintiff alleged:

"That defendant, in writing, on or about the dates as follows: June 15, 1933; November 20, 1933; July 21, 1934; January 20, 1935; July, 1935; October 12, 1936; January 9, 1937; acknowledged the indebtedness represented by the promissory note set forth in the petition herein, and promised to pay the same; that said acknowledgments and promises were made in writing by defendant after he became a resident of the State of Wyoming, and defendant is therefore barred and estopped from setting up the statute of limitations as alleged in said second defense."

It seems to be conceded by the parties hereto that the contract was one made in the State of Washington.

The trial of the cause was to the court without a jury. The defendant introduced no evidence whatsoever. The district court found generally in favor of the plaintiff and entered judgment for the full amount claimed to be due on the note, including interest, together with a $ 75.00 attorney's fee.

The Wyoming statutes pertinent are as follows: Sections 89-408, 89-409, and 89-421, which read respectively:

Sec. 89-408. "Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action accrues."

Sec. 89-409. "Within ten years an action upon a specialty or any contract, agreement or promise in writing; and upon all foreign claims, judgments or contracts, expressed or implied, contracted or incurred and accrued before the debtor becomes a resident of this state, action shall be commenced within five years after the debtor shall have established his residence in this state."

Sec. 89-421. "When payment has been made upon any demand founded on contract or a written acknowledgment thereof, or promise to pay the same has been made and signed by the party to be charged, an action may be brought thereon within the time herein limited, after such payment, acknowledgment or promise."

Plaintiff introduced in evidence a number of letters written by the defendant to various representatives of the owners and holders of the note aforesaid or to its payee, said letters being submitted by the plaintiff as constituting an acknowledgment of the indebtedness within the terms of the statute, Section 89-421, supra. There were three letters written during the year 1933, one on May 22, one in response to a letter from a representative of the payee bank dated June 15 and typewritten on the back of that letter, and one on November 20. Other letters were written by the defendant as aforesaid on July 21, 1934, January 20, 1935, July 22 of the year last mentioned, October 12, 1936, and January 9, 1937.

It is intimated that the court was in error in admitting in evidence some of these letters, especially those written more than five years preceding the date of the bringing of this action.

37 C. J. 1248, Section 775, says that:

"Letters are frequently received in evidence, especially in connection with other evidence, even though their contents, standing alone, may not be sufficient to show an acknowledgment or new promise, or even though they were written more than the statutory period before suit; but in some cases they have been excluded on account of the date on which they were written."

In Lang v. Gage, 66 N.H. 624, 32 A. 155, it was held that the defendant's letters acknowledging the debt, though not written within the statutory period before suit, were admissible to prove that he acknowledged the debt within such period. In Quincy v. Blanchard, 36 R.I. 296, 90 A. 209, it was decided that letters written more than the statutory period before suit were admissible as tending to fix the amount due and also aid in construing later correspondence, upon which plaintiff relied as establishing a new promise. The court employed this language in dealing with the matter:

"The evidence of a new promise relied upon by the plaintiff...