Kienke v. Hudson
| Decision Date | 30 March 1934 |
| Docket Number | 28870 |
| Citation | 253 N.W. 687,126 Neb. 551 |
| Parties | CHRIS J. KIENKE, APPELLEE, v. WILLIAM N. HUDSON, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Keya Paha county: ROBERT R DICKSON, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Payment of principal or interest, after the maturity of a promissory note, made before the statute of limitations has run, tolls the statute, and a new right of action accrues after each payment.
2. Under the provisions of section 20-216, Comp. St. 1929, any payment upon a promissory note, made through the arrangement of the maker, or such payment as is the natural and reasonable sequence of his agreement, will stay the running of the statute of limitations.
3. Partial payment of principal or interest upon a promissory note by one joint maker, with the knowledge and consent of the other, out of funds in which they are jointly interested, tolls the statute of limitations as to each maker.
Appeal from District Court, Keya Paha County; Dickson, Judge.
Action by Chris J. Kienke against William N. Hudson and another. From an adverse judgment, the named defendant appeals.
Affirmed.
Sterling F. Mutz and Robert S. Stauffer, for appellant.
J. J. Harrington and Ross Amspoker, contra.
Heard before GOOD, EBERLY and DAY, JJ., and CHAPPELL and REDICK, District Judges.
This case is presented to the court a second time, having been heretofore reported in 122 Neb. 475. After reversal, as a companion case to Kienke v. Kirsch, 121 Neb. 688, 238 N.W. 33, and retrial thereof to the court, without a jury, the sole question for our determination is whether this action was barred by the statute of limitations.
Plaintiff, appellee herein, filed an action in the district court for Keya Paha county, Nebraska, on October 10, 1929, against George J. Kirsch and William N. Hudson, defendants, to recover $ 7,746, with interest at 8 per cent. from October 2, 1929, the balance due upon a promissory note dated December 2, 1920, due six months after date, indorsed on the back of which were payments of interest or principal, or both, on the dates December 1, 1921, February 6, 1923, September 26, 1924, January 9, 1925, June 10, 1925, June 2, 1926, December 4, 1926, June 11, 1927, December 2, 1927, and June 2, 1928. Defendant George J. Kirsch defaulted and judgment was rendered against him. Defendant William N. Hudson answered and, among other defenses, pleaded the statute of limitations. Upon trial thereof the court found generally for plaintiff and against defendant William N. Hudson and entered judgment for $ 9,808, with interest at 8 per cent. from February 10, 1933, from which he appeals to this court.
It is admitted that defendant George J. Kirsch made all the payments. The contention is, however, that appellant specifically authorized the payments to be made for him, and that, in any event, the payments were made under such circumstances that appellant is estopped to claim that they were not made for him with his knowledge and authority.
The evidence discloses that, at the time this note was given, plaintiff was the owner of a secured note for more than $ 8,000 given to him for valuable consideration by one Ira Baker. The Burton State Bank, of which defendant George J. Kirsch was cashier, and appellant, his father-in-law, was vice-president, held Ira Baker's unsecured note. In order that the bank could own both of these notes, have both of them under its control and obtain the benefit of plaintiff's secured note, thus strengthening the bank's paper, and to pay a small balance owing plaintiff, the defendants gave the note in controversy to plaintiff and took over the secured note then owned by plaintiff. At the time the note in controversy was given it was agreed between the parties that defendant George J. Kirsch should pay the principal and interest as it accrued through the Burton State Bank. Appellant denies this, but a careful reading of the evidence convinces us and warranted a finding by the trial court that these payments were made by defendant George J. Kirsch as previously agreed upon.
The appellant and defendant George J. Kirsch were both makers of this note and primarily liable. Kienke v. Kirsch, 121 Neb. 688, 238 N.W. 33; Kienke v. Hudson, 122 Neb. 475, 240 N.W. 562. We said in Stroud v. Payne, 124 Neb. 612, 247 N.W. 595: Having been tried to the court without a jury, the same result follows. See, also, McNamee v. Graese, 245 N.W. 924; Bosler v. McShane, 78 Neb. 86, 110 N.W. 726.
Further the evidence discloses that on May 6, 1918, plaintiff sold to defendant George J. Kirsch certain shares of stock then owned by him in the Burton State Bank; that thereafter, on May 7, 1918, appellant was issued 20 shares of this...
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