Kline v. Fritsch

• Decision Date: 07 November 1933
• Citation: 213 Wis. 51,250 N.W. 837
• Parties: KLINE v. FRITSCH ET AL.
• Court: Wisconsin Supreme Court

213 Wis. 51

250 N.W. 837

KLINE

v.FRITSCH ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1933.

Appeal from a judgment of the Circuit Court for Green County; George Grimm, Circuit Judge.

Action by Flossie Belle Kline against J. D. Fritsch and another. From a judgment for plaintiff named defendant appeals.--[By Editorial Staff.]

Judgment affirmed.

Action begun August 15, 1932; judgment entered March 16, 1933. On April 6, 1923, the defendants signed a note for $2,500, payable three years after date to the order of Simon Keister, at the Freeport Trust & Savings Bank, Freeport, Ill. The note contained a power of attorney. The last clause of the note was as follows: “The maker, signer and endorser of this note severally waive demand, notice and protest, and agree to all extensions and partial payments, before and after maturity, without prejudice to the holder.”

The defendant John F. Fritsch made numerous payments of interest upon the note; the last payment amounting to $56 having been made on July 31, 1930, which paid the interest to April 6, 1931. It further appears that the appealing defendant, J. D. Fritsch, knew at all times that his comaker, John F. Fritsch, was keeping up the payments of interest, that J. D. Fritsch did not at any time order or direct the said John F. Fritsch to make any payments for him, nor did he refer the holder of the note to John F. Fritsch, and that at no time did the owner or holder of the note ever request payment of the note from the defendant J. D. Fritsch.

Upon these and other facts which appeared by the undisputed evidence, the trial court was of the view that, by virtue of the clause in the note heretofore set out in extenso, J. D. Fritsch did as a matter of fact consent to and acquiesced in all payments made by his comaker, John F. Fritsch. Judgment was entered accordingly against both defendants, from which the defendant J. D. Fritsch appeals.J. M. Fitzgibbons, of Monroe (Richmond, Jackman, Wilkie & Toebaas, of Madison, of counsel), for appellant.

Harold J. Lamboley, of Monroe (Olin & Butler and Byron H. Stebbins, all of Madison, of counsel), for respondent.

ROSENBERRY, Chief Justice.

Section 330.47, Wis. Stats., provides as follows: “If there are two or more joint contractors or joint executors or administrators of any contractor no one of them shall lose the benefit of the provisions of this chapter [Limitations of Commencement of Actions and Proceedings], so as to be chargeable, by reason only of any payment made by any other or others of them.”

It is the contention of the appealing defendant that under the terms of this section the payments made by John F. Fritsch did not operate to toll the statute of limitations which was set up by the appealing defendant, and therefore, as to him (the appealing defendant) the cause of action was barred by the six years' statute. J. D. Fritsch was the father of John F. Fritsch, and was in fact an accommodation maker. It also appears by admission of the defendant and by the testimony of the son that the father inquired from time to time or at least was told from time to time that the interest on the loan was being paid. It is the contention of the plaintiff on the other hand that the clause contained in the note by which the maker agrees to all extensions and partial payments before and after maturity without prejudice to the holder amounts to a consent or authority by each of the makers that payments made by the other should be without prejudice to the holder and so operated to toll the statute.

[1] It is undoubtedly the law that, in the absence of statute, payments made by one comaker or joint debtor toll the statute of limitations as to both. 71 A. L. R. note, page 399. See, also, Clement v. Clement, 69 Wis. 599, 603, 35 N. W. 17, 2 Am. St. Rep. 760;Coleman v. Ward, 85 Wis. 328, 331, 55 N. W. 695;Reinig v. Nelson, 199 Wis. 482, 488, 227 N. W. 14.

[2] This matter was carefully considered in Gillitzer v. Ducharme, 203 Wis. 269, 271, 234 N. W. 503, where it is pointed out that a comaker who consents to or acquiesces in a payment...