Senninger v. Rowley

• Decision Date: 09 June 1908
• Citation: 116 N.W. 695,138 Iowa 617
• Parties: SENNINGER v. ROWLEY ET AL.
• Court: Iowa Supreme Court

138 Iowa 617

116 N.W. 695

SENNINGER

v.ROWLEY ET AL.

Supreme Court of Iowa.

June 9, 1908.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Action in equity for the foreclosure of a mortgage. Decree for plaintiff, and defendants appeal. Affirmed.Voris & Haas, for appellants.

J. E. Bromwell & J. H. Preston, for appellee.

WEAVER, J.

On February 2, 1882, one Ephraim Ellis made and delivered to Francis Senninger his promissory note for the sum of $1,500, payable five years after date, with annual interest at 8 per cent. and secured the same by mortgage on a tract of land owned by said Ellis in Linn county, Iowa. This mortgage was therefore duly assigned to the plaintiff. On February 23, 1882, Ellis conveyed the land to John Palmer, who assumed payment of the mortgaged debt. Soon thereafter Palmer died, and his heirs who succeeded to the title quit-claimed the land to the appellant E. W. Rowley under date of March 4, 1890. On March 7, 1893, Rowley paid plaintiff the interest then due upon the note, together with $200 of the principal, and, at his request, she reduced the rate of interest on the remainder from 8 per cent. to 7 per cent. per annum. From that time appellant continued to pay to appellee the yearly accruing interest at the rate of 7 per cent. until about February 20, 1901. On the date last named appellant called upon the appellee, saying he had sold the land, and wished to pay off the mortgage debt. Computing the amount due to be $1,393.64, he gave appellee a check for that sum, and she delivered him the note. On the following day, and before the check was cashed, appellee claimed to have discovered that a mistake had been made in the computation of the note, and that the check was insufficient to pay the same by the amount of $100. She thereupon caused the appellant to be promptly notified of the error. Responding to this notice, appellant visited the appellee and, according to her testimony, told her that he could then pay her the additional $100, but he was in position to make use of all of the money if she would consent, and it was arranged between them that he should pay all of the interest which had accrued on the note to that date and the papers be re-exchanged, the debt thereafter to bear interest at 6 per cent. Pursuant to this agreement the note was changed by altering the word or figure indicating the rate of interest, and delivered to the appellee, and she returned the check to appellant. The debt not having been paid, this action to foreclose the mortgage was be gun August 17, 1906. The facts as above related are all set forth in the petition, and the appellant in his answer admits their substantial truth, except he denies ever assuming to pay the debt, and says that, upon the discovery of the mistake in the amount of the check given her in payment of the note, he returned the note and received back the check, and that the attempted settlement and payment was at plaintiff's demand set aside, and the parties resumed the same relation to each other and to the mortgage debt which they would have occupied had said attempted payment never been made. He further pleads the statute of limitations as a bar to plaintiff's right of action. As a witness, appellant makes no attempt to deny any of the matters of fact alleged and sworn to by the appellee.

The one question thus presented for our hearing is whether upon the undisputed facts appellant is in a position to rely upon the statute of limitations. Unquestionably much more than 10 years had elapsed between the maturity of the note and the commencement of this action. But, according to the statute (Code, § 3456), a cause of action may be revived or renewed by an admission in writing signed by the party to be charged that the debt is unpaid, or by a like new promise to pay. To support her claim of such revivor or renewal in this case, appellee relies upon the check given to her by the appellant as hereinbefore related as a written acknowledgement of the debt. She also offers in evidence a letter written to her by appellant in response to her request for payment of the note, in words as follows: “Loveland, Colo., 1-18-1903. Mrs. Senninger: Yours of the fifth is at hand. In reply would say that I had not figured on paying you any money while we were out here, consequently have used it for other purposes. You told me when I was there that I need not pay you any till I came back. We only have our rent and need that to live on, so I do not see how we could send you anything at present. Yours respctly, E. W. Rowley.” If appellant ever assumed or became charged with personal liability for the payment of this debt, we think either of these writings is such an admission as will set the statute of limitations running anew. It is not necessary that both an admission of the debt and a new promise to pay shall be made and signed by the party, but either is sufficient. Stewart v. McFarland, 84 Iowa, 55, 50 N. W. 221.

Nor is it requisite to the sufficiency of an admission that the party shall say in so many words “I admit that this note is unpaid.” It is enough that such an admission is the natural and necessary inference from the writing. If A. demands of B. the amount of an alleged indebtedness, and B. thereupon writes, signs, and delivers to A. his check for such amount, the check so delivered admits of no other...