Keener v. Lloyd

• Decision Date: 05 July 1913
• Docket Number: 18,290
• Citation: 133 P. 710,90 Kan. 250
• Parties: S. E. KEENER, Appellant, v. ROBERT LLOYD, as Executor, etc., Appellee
• Court: Kansas Supreme Court

133 P. 710

90 Kan. 250

S. E. KEENER, Appellant, v. ROBERT LLOYD, as Executor, etc., Appellee

No. 18,290

Supreme Court of Kansas

July 5, 1913

Decided July, 1913.

Appeal from Clay district court.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

STATUTE OF LIMITATIONS -- Promissory Notes -- Payments--Instructions. In a controversy as to whether or not an action upon a promissory note was barred by the statute of limitations, in which it was claimed that a partial payment indorsed upon the note tolled the statute, and where there was testimony by the holder that a payment was made on the date of the indorsement, and also testimony of such payment by another witness who was unable to fix the particular day when it was made, an instruction to the effect that unless it was shown that the payment was made on the particular date of the indorsement the bar of the statute had fallen and no recovery could be had upon the note and the refusal of a request for an instruction that the action would not be barred if a payment had been made at or near the date of indorsement and within the statutory period of limitation was error.

F. B Dawes, and R. C. Miller, both of Clay Center, for the appellant.

C. Vincent Jones, and F. L. Williams, both of Clay Center, for the appellee.

OPINION

JOHNSTON, C. J.:

The principal question involved in this litigation was whether the action brought by the appellant, S. E. Keener, against the representative of John Lloyd, deceased, was barred by the statute of limitations. It was alleged by appellant that on January 26, 1903, John Lloyd executed a promissory note to appellant for $ 1700 and that subsequently he made four payments upon the note, as follow: on May 1, 1905, $ 475; on June 7, 1905, $ 300; on November 19, 1907, $ 90; and on November 18, 1909, $ 75. The bar had fallen unless a partial payment had been made by Lloyd within the statutory period. There is little controversy as to the two payments made in 1905, but the indorsements upon the note as of 1907 and 1909 are contested by appellee. If either of these was in fact made, the debt is not barred. On the back of the note indorsements as of 1907 and 1909 were written. Appellant testified circumstantially as to these payments and stated that the indorsements were entered on the note when the payments were made. Another witness testified as to circumstances tending to show that a payment was made on the note by Lloyd sometime after the first of June, 1909. He was not able to state positively the date on which the payment was made, but he testified that he returned from a Colorado trip on June 1, 1909, and that the payment was made in his presence after that time. The verdict of the jury was against appellant, which was, in effect, a finding that the action was barred. The appellant asked the court to instruct the jury that if the payments mentioned were made at or near the dates of indorsement, that they would operate to interrupt the running of the ...