Oleson v. Wilson

• Decision Date: 17 March 1898
• Citation: 52 P. 372,20 Mont. 544
• Parties: OLESON v. WILSON.
• Court: Montana Supreme Court

52 P. 372

20 Mont. 544

OLESON v. WILSON.

Supreme Court of Montana

March 17, 1898

Pigott j., dissenting.

Appeal from district court, Meagher county; F. K. Armstrong, Judge.

Action by Jacob Oleson against Charles E. Severance and another. From a judgment for plaintiff, defendant G. R. Wilson appeals. Reversed.

This is a suit, instituted in the district court of Meagher county to recover judgment on the following promissory note "$3,000. Oka, Montana, Oct. 10, 1882. On thirty days' sight we, or either of us, promise to pay Jacob Oleson three thousand dollars with interest at 1 1/4 per cent. per month until paid. [Signed] Jacob Severance. Charles E. Severance. G. R. Wilson." The suit was against Charles E. Severance and G. R. Wilson; Jacob Severance, the other maker of the note, having died before the commencement thereof. The complaint is such a pleading as is used ordinarily in such actions. The defendant G. R. Wilson, among other things, pleaded the statute of limitations, and in this case relies upon that statute as a perfect defense. The replication denies that the note, as to the defendant G. R Wilson, is barred by the statute of limitations. Judgment by default was taken against Severance. There is an agreed statement of facts in the case as far as defendant Wilson is concerned, from which statement it appears that there were several payments of interest made on the note between the time of its execution and the 10th day of October, 1893, by the defendant Charles E. Severance, who, it is conceded, was the sole principal in said note; Jacob Severance and defendant Wilson being sureties thereon. Defendant Wilson never authorized Charles E. Severance, or any one else, to make any payments on the note for him, and never made any himself. It is conceded that he did not know anything about any payments having been made by anybody on said note; that said note was first presented to Wilson for payment on the 8th day of September, 1894, when he refused to pay the same; that plaintiff knew at the time of the execution of the note that Jacob Severance and defendant Wilson signed their names only as sureties for defendant Charles E. Severance. It is further agreed that at the time of the execution of the note Charles E. Severance was solvent and remained solvent for 10 years thereafter, during which time said note could have been collected of him; that at the time of the commencement of this suit the said Charles E. Severance was wholly insolvent, and still remains so; that on the 29th day of December, 1891, Jacob Severance died, leaving a solvent estate; that an executrix of said estate was duly appointed, and public notice to creditors given, but that said note was never presented as a claim against said estate,--the plaintiff having at all times since the death of said Jacob Severance resided within the state of Montana,--and had he presented his claim to said executrix the same could have been collected and paid out of the estate; and that the same is now barred as against said estate. In the lower court the plaintiff relied upon the payments of interest on the note, which were made by the principal, Charles E. Severance, to prevent the running of the statute of limitations in favor of the defendant Wilson; and the court, adopting the view of the plaintiff that said payments did prevent the running of the statute as to the defendant Wilson, rendered judgment against him for the sum of $4,200. From this judgment the defendant Wilson appeals.

Smith & Gormley, for appellant.

C. B. Nolan and Massena Bullard, for respondent.

PEMBERTON C.J.

(after stating the facts). Counsel for appellant rely upon Bank v. Bullard, 20 Mont. 118, 49 P. 658, for a reversal of the judgment appealed from in the case at bar. In that case this court held "that, under the statutes of Montana, one joint maker of a note, by a partial payment thereon after its maturity, without the assent or ratification of his co-makers, binds only himself, so far as an extension of the statutory period of limitations is concerned." The material facts upon which the plea of the statute of limitations is predicated are identical in both cases. Counsel for the respondent contend that from the time of the execution of the note until the institution of this suit sections 53, 54, div. 1, Comp. St. Mont., were in force in this state, and should control in the decision of this case. These sections are as follows:

"Sec. 53. No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this act, unless the same is contained in some writing signed by the party to be charged thereby; but this act shall not alter the effect of any payment of principal or interest.

"Sec. 54. Whenever any payment of principal or interest has been or shall be made upon an existing contract, whether it be bill of exchange, promissory note, bond, or other evidence of indebtedness, if such payment shall be made after the same shall have become due, the limitation shall commence from the time the last payment was made."

Counsel for respondent further contend that these statutes were borrowed from the state of Minnesota after they had been construed by the supreme court of that state, and that this court is bound by the construction given them by the supreme court of that state in Whitaker v. Rice, 9 Minn. 13 (Gil. 1), and that, as the decision in Bank v. Bullard, supra, is in conflict with the construction given these statutes in Whitaker v. Rice by the supreme court of Minnesota, the construction of the Minnesota court should now be adhered to, and our own decision overruled. The question here involved was very ably and elaborately argued when Bank v. Bullard was before this court, as stated therein by the learned author in the opinion. An able and exhaustive argument was also made by distinguished counsel on a petition for a rehearing in that case, which, upon due consideration, we felt compelled to deny. It is not denied now, nor at any time has it been denied, by counsel, that this court followed the "more modern and best-reasoned decisions" and authorities in the conclusion we reached in Bank v. Bullard. The argument of counsel for the respondent is, in effect, that this court is absolutely bound by the construction given these statutes by the Minnesota court, because the statutes were borrowed from that state after being construed by its court; the construction given becoming a part of the statutes when adopted by our legislature. We admit "that the construction put upon statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it." End. Interp. St. § 371. Our court has always followed this rule. But we do not admit that such construction of borrowed statutes should prevail when not in harmony with the spirit and policy of our own legislation and decisions. Id. While it is true that Whitaker v. Rice, supra, construed the statutes under discussion, still it cannot be denied that the court, in arriving at its conclusion, was largely controlled by the language of Lord Mansfield in Whitcomb v. Whiting, 3 Doug. 652 (decided in 1781), to wit: "Payment by one is payment for all, the one acting virtually as agent of the rest; and in the same manner an admission by one is an admission by all, and the law raises the promise to pay when the debt is admitted to be due." In Willoughby v. Irish, 35 Minn. 63, 27 N.W. 379, the supreme court of Minnesota completely overruled Whitaker v. Rice, supra, and repudiated the doctrine declared by Lord Mansfield in Whitcomb v. Whiting, supra, upon which the decision is so largely predicated. In Willoughby v. Irish, supra, which overruled Whitaker v. Rice, supra, the supreme court of Minnesota said: "Recurring to the pivotal point in this case, if there must, then, be a new promise, express or implied, to sustain an action, can one of several joint debtors, from the mere fact of the existence of the joint liability, and having no authority in respect to each other, except such as results from that relationship, by his own several act or agreement create or renew a liability as against all such debtors for a debt otherwise barred by limitation? Logically, and upon principle, there can be but one answer to this question. No such authority or agency exists, or can be implied, from the joint contract, as will authorize one to act for and bind the others, so as to renew or extend their liability. Where the relation is merely that of joint debtors, neither is the agent of the other to make a new contract with the creditor, or to bind the others by a new promise changing or affecting their legal rights, or giving such creditor a right of action against them which he would not otherwise have. And nothing can be added to the exhaustive and satisfactory discussion of the subject in Bell v. Morrison, supra, and Van Keuren v. Parmelee, 2 N.Y. 523, 51 Am. Dec. 322, and notes; Shoemaker v. Benedict, 11 N.Y. 176. *** In Bell v. Morrison, the debt had already been barred when the new promise was alleged to have been made, and a further distinction is suggested between cases of that class and those where payments or new promises have been made before the statute has run; and upon this distinction Judge Denio grounds his dissent in Shoemaker v. Benedict, supra. But it is founded upon no principle. If the agency exists in one case, it must in the other, and the same authority is required to bind one joint debtor, by the promise or partial payment of his co-debtor, before as after the six years have elapsed."

It may be said, in reply to this, that when Willoughby v. Irish was decided the legislature of...