Nat. Bank of Delavan v. Cotton

• Decision Date: 27 September 1881
• Citation: 53 Wis. 31,9 N.W. 926
• Parties: NAT. BANK OF DELAVAN v. COTTON, ADM'R, ETC.
• Court: Wisconsin Supreme Court

53 Wis. 31

9 N.W. 926

NAT. BANK OF DELAVAN

v.COTTON, ADM'R, ETC.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Walworth county.

Fisk & Dodge, for appellant.

S. J. Todd, Bennett & Sale, and R. S. Spooner, for respondent.

ORTON, J.

The findings of fact by the circuit court upon which the judgment was rendered for the defendant in this cause are, substantially, that no payment was made upon the note in suit after the sixth day of January, 1873, by Patrick Gormley, before his death, the ninth day of January, 1879, or by any one authorized thereto in his behalf; and that the debt mentioned did not accrue within six years next prior to his death; and that Patrick Gormley did not undertake or promise to pay said debt within said six years. The conclusion of law was, of course, that the cause of action was barred by the statute of limitations. The only question which need be determined on this appeal is one of fact--whether Patrick Gormley, in his life-time, made any payment upon said note after the sixth day of January, 1873, or by any one authorized thereto in his behalf. Being of the opinion that the finding of the circuit court upon this question was clearly erroneous, other exceptions in the record need not be considered.

Patrick Gormley and one A. H. Barnes were jointly liable to pay this note, together with other indebtedness to the plaintiff, of the firm of S. Atwater & Co., which they had assumed on the dissolution of said firm. D. B. Barnes testified that A. H. Barnes and Patrick Gormley told him that they had made an arrangement and agreement whereby A. H. Barnes was to pay $600 on this note, and Patrick Gormley was to pay a like sum to one George Cotton, for which they were also jointly liable to the plaintiff, and then testified positively and of his own knowledge that A. H. Barnes paid, of the $600 to be paid on this note by said agreement, the sum of $585 on the eleventh day of September, 1875, and that he informed Gormley that it had been so paid, and it was in evidence that Patrick Gormley paid Cotton $600, according to said agreement. Cotton testified that he understood that such was the agreement from information derived from both A. H. Barnes and Patrick Gormley, and that Gormley paid him the $600; but he testified further that he thought this arrangement was made in 1877, but he modified his testimony as to the date by saying that it was made when the second year's interest was due on his claim, and exactly when that was the evidence is silent, except that his claim was due in two years from June, 1871, which, by inference, would make the second year's interest due at that time, or in June, 1873, and the date of the arrangement at that time, instead of the year 1877, or in 1876 or 1877, and it is uncertain which. The witness D. B. Barnes was connected with the bank, owning and holding this paper, and was in a condition to know positively when this payment was made. The witness Cotton speaks from vague and uncertain recollection as to the time when he was informed, simply concerning the arrangement by which the payments were to be made, and then changes his testimony to correspond with an event which inferentially makes its date 1873, 1876, or 1877, and he does not pretend to know when the $585 of the $600 agreed to be paid by A. H. Barnes to the bank was actually paid. But if this payment was in 1877, it was within six years from 1873, the time of the previous payment of $600.

The testimony of D. B. Barnes appears to us to be conclusive that this $585...