Mahas v. Kasiska
| Decision Date | 31 December 1928 |
| Docket Number | 4975 |
| Parties | GUST MAHAS, Respondent, v. W. F. KASISKA, Appellant, and E. C. WHITE, Defendant |
| Court | Idaho Supreme Court |
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.
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, 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 Laws 1923, chap. 49.
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.)
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.
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.)
Budge, C. J., took no part in the decision.
WM. E. LEE, C. J.
This is an action by Mahas to recover on a promissory note made by White and Kasiska. The note was payable "on demand." It was executed August 23, 1920. Interest was paid by White to and including the year 1923. In 1924, Mahas demanded payment of the note from White, and in July, 1925, he demanded payment from Kasiska. Payment was not made and action was instituted October 6, 1925, more than five years after the date of the note. White was not served and did not appear. Kasiska pleaded the bar of the statute of limitations, C. S., sec. 6609, and from a judgment for Mahas, entered on a directed verdict, this appeal is prosecuted.
It is the position of appellant that the statute commenced to run from the date of the instrument, and that more than five years elapsed between the date of the instrument and the commencement of the action. It is the position of respondent that the parties agreed, when the note was delivered, that it would not mature until demand for payment had been made, and that the statute, therefore, did not commence to run until payment was demanded. To prove that the parties intended that the note "would not mature until a demand was made in fact," respondent testified: ". . . . and he (Kasiska) says to make the note on demand and when I need the money to ask for it and get it." Conceding, for the purpose of argument, that this evidence is sufficient to show the claimed agreement, in view of the objection, that it tended to vary the terms of the note, it should not have been admitted. The note is complete on its face and free from ambiguity. The legal effect of an instrument payable on demand, such as the one in question, is that it is due immediately (8 C. J. 406), and that the statute of limitations commences to run from the date of its execution. (37 C. J. 845; 17 R. C. L. 769.) To give such evidence the effect urged by respondent would change the legal effect of the note in that, instead of maturing at the date of its execution, it would not mature, and the statute would not commence to run, until demand for payment was actually made. Parol evidence is inadmissible to vary the plain terms and conditions of a promissory note (International Harvester Co. v. Beverland, 37 Idaho 782, 219 P. 201; Craven v. Bos, 38 Idaho 722, 225 P. 136; Central Bank of Bingham v. Perkins, 43 Idaho 310, 251 P. 627); and its legal effect can no more be contradicted, changed or explained by extrinsic evidence than the writing itself. (Smith etc. Co. v. Corbin, 81 Wash. 494, 142 P. 1163; Riddell v. Peck-Williamson etc. Co., 27 Mont. 44, 69 P. 241; State v. District Court, 55 Mont. 330, 176 P. 613; Standard Box Co. v. Mutual Biscuit Co., 10 Cal.App. 746, 103 P. 938; Andrus v. Blazzard, 23 Utah 233, 63 P. 888, 54 L. R. A. 354; California etc. Co. v. Crowder, 58 Cal.App. 529, 209 P. 68; Young v. Bierschenk, 199 Iowa 309, 201 N.W. 591; Morrison v. Riley (Tex. Civ. App.), 198 S.W. 1031; 22 C. J. 1075; 10 R. C. L. 1022, n. 16.)
Respondent also contends that the interest payments by White suspended the running of the statute in favor of Kasiska. Whether a payment by one of two parties jointly or severally liable on a promissory note suspends the running of the statute as to...
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