Mahas v. Kasiska, 4975

• Court: United States State Supreme Court of Idaho
• Writing for the Court: WM. E. LEE, C. J.
• Citation: 276 P. 315,47 Idaho 179
• Parties: GUST MAHAS, Respondent, v. W. F. KASISKA, Appellant, and E. C. WHITE, Defendant
• Docket Number: 4975
• Decision Date: 31 December 1928

276 P. 315

47 Idaho 179

GUST MAHAS, Respondent,
v.
W. F. KASISKA, Appellant,

and E. C. WHITE, Defendant

No. 4975

Supreme Court of Idaho

December 31, 1928

STATUTE OF LIMITATIONS-NEGOTIABLE INSTRUMENTS-DEMAND NOTE-PAROL EVIDENCE RULE-WAIVER OF LIMITATIONS-PAYMENT OF INTEREST BY ONE OF TWO JOINTLY LIABLE.

1. In action on note payable on demand, evidence that parties agreed when note was delivered that it would not mature until actual demand for payment was made held improperly admitted, since it tended to vary terms of note which was complete on its face and free from ambiguity.

[47 Idaho 180]

2. Legal effect of note payable on demand is that it is due immediately, and statute of limitations, C. S., sec. 6609, commences to run from date of its execution.

3. Parol evidence is inadmissible to vary plain terms and conditions of note and its legal effect can no more be contradicted, changed, or explained by extrinsic evidence than writing itself.

4. Payment of interest by one of two joint makers of note payable on demand did not suspend running of statute of limitations, C. S., sec. 6609, as to the other, under section 6631, as amended by Laws 1923, chap. 49, since payment of interest kept debt alive only as to party making payment.

5. In order to take case out of operation of statute of limitations, C. S., sec. 6609, there must be an express promise to pay or an acknowledgment or admission of debt in terms so distinct and unqualified that such a promise may be implied.

6. A mere reference to debt without an express or implied promise to pay is not sufficient to prevent running of statute of limitations, C. S., sec. 6609.

7. Letters written by defendant containing professions of surprise and regret that note had not been paid, expressions of willingness to assist in an effort to secure payment from joint maker, suggestions that note be sent to lawyer for collection and that it be filed as claim with joint maker's receiver did not constitute such clear and definite acknowledgment of existence of liability and a promise to pay as to take case out of operation of statute of limitations, C. S., sec. 6609, under section 6631 as amended by Laws 1923, chap. 49. [47 Idaho 181]

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Clinton H. Hartson, Judge.

Action on promissory note. Judgment for plaintiff. Reversed.

Judgment reversed. Costs to appellant.

Walter H. Anderson, for Appellant.

An acknowledgment and admission that a third party owes a debt does not bind the party making such acknowledgment or admission. (Mutual Life Ins. Co. v. United States Hotel Co., 82 Misc. 632, 144 N.Y.S. 476.)

The plaintiff's cause of action was barred by virtue of the provisions of the statute of limitations of the state of Idaho. (C. S., sec. 6609.)

On a promise to pay on demand, statute of limitations begins to run from the date of the loan. (37 C. J. 845.)

That statute of limitations is favorably regarded by the courts, and is meritorious and honorable defense as now regarded. (Koop v. Cook, 67 Ore. 93, 135 P. 317; 37 C. J. 689; Bank of Montreal v. Guse, 51 Wash. 365, 98 P. 1127.)

In order for an acknowledgment of the obligation to be sufficient to take it out of the operation of the statute of limitations, the writing itself must be sufficient standing alone unaided by other proof. (Cotulla v. Urbahn, 104 Tex. 208, Ann. Cas. 1914B, 217, 135 S.W. 1159, 34 L. R. A., N. S., 345.)

The statute of limitations begins to run when the cause of action accrues. (C. S., sec. 6594.)

The law is that a payment made by the principal debtor or a joint debtor before the bar of statute has become complete does not keep the debt alive as to a surety or joint maker. (Monidah Trust Co. v. Kemper, 44 Mont. 1, Ann. Cas. 1912D, 1326, 118 P. 811; 13 C. J. 1168; 17 R. C. L. 945.)

[47 Idaho 182] Merrill & Merrill, for Respondent.

The statute of limitations did not begin to run at the date of the note, nor until demand in fact was made. (Wood on Limitations, sec. 118, p. 617, and note 10; Longhofer v. Herbel, 83 Kan. 278, 111 P. 483; Cook v. Gore's Estate, 82 Vt. 137, 72 A. 322; Sullivan et al. v. Ellis, 219 F. 694, 135 C. C. A. 366; Horton v. Seymour, 82 Minn. 535, 85 N.W. 551; Yates v. Goodwin, 96 Me. 90, 51 A. 804; Fallon v. Fallon, 110 Minn. 213, 136 Am. St. 464, 124 N.W. 994, 32 L. R. A., N. S., 486; Brown v. Brown, 28 Minn. 501, 11 N.W. 64.)

The statute of limitations does not begin to run against an indorser or surety on a promissory note payable on demand until after actual demand has been made on the principal. (Wood on Limitations, sec. 118; Shutts v. Fingar, 100 N.Y. 539, 53 Am. Rep. 231, 3 N.E. 588; Trimble v. Thorne, 16 Johns. (N. Y.) 152, 8 Am. Dec. 302; Wells v. Mann, 45 N.Y. 327, 6 Am. Rep. 93.)

At the common law, a payment made by the principal debtor upon a note before the bar of the statute has become complete, keeps the debt alive both as to himself and the surety. The last payment made by White, therefore, kept the debt alive as to both White and Kasiska. (Wood on Limitations, sec. 145; Cross v. Allen, 141 U.S. 528, 12 S.Ct. 67, 35 L.Ed. 843.)

Parol evidence is admissible to connect several writings, and to identify the debt referred to. (Fitzgerald v. Flanagan, 155 Iowa 217, Ann. Cas. 1914C, 1104, 135 N.W. 738; Kelly v. Leachman, 3 Idaho 629, 33 P. 44.)

The decisions in regard to what form of acknowledgment constitutes an implied promise to pay a debt are not harmonious. Indeed the decisions are not harmonious as to whether an implied promise is sufficient to remove the bar of the statute of limitations. (Note, 102 Am. St. 768.)

An acknowledgment of the debt is sufficient evidence of a continuing contract to take the case out of the operation of the statute of limitations, if contained in a writing signed by the party to be charged thereby. (1923 Session Laws, chap. 49; Wood on Limitations, sec. 68 and note 28; Hayden v. Johnson, 26 Vt. 768; note, 102 Am. St. 768 and 769; Searles v. Gonzalez, 191 Cal. 426, 28 A. L. R. 78, 216 P. 1003; Sears v. Howe, 80 Conn. 414, 12 Ann. Cas. 809, 68 A. 983; Harms v. Freytag, 59 Neb. 359, 80 N.W. 1039; Campbell v. Campbell, 118 Iowa 131, 91 N.W. 894; Will v. Marker, 122 Iowa 627, 98 N.W. 487; Kelly v. Leachman, 3 Idaho 629, 33 P. 44; Dern v. Olsen, 18 Idaho 358, Ann. Cas. 1912A, 1, 110 P. 164, L. R. A. 1915B, 1016.)

WM. E. LEE, C. J. Givens, J., Baker, D. J., T....