Sterrett v. Sweeney

• Decision Date: 21 November 1908
• Parties: I. J. STERRETT, Appellant, v. S. B. SWEENEY, Respondent
• Court: Idaho Supreme Court

98 P. 418

15 Idaho 416

I. J. STERRETT, Appellant, v. S. B. SWEENEY, Respondent

Supreme Court of Idaho

November 21, 1908

STATUTE OF LIMITATIONS-FOREIGN CONTRACTS-PARTIAL PAYMENTS-RESIDENCE WITHIN THE STATE-FINDINGS.

1. Under the provisions of sec. 4817 of Ballinger's Ann Code of Washington, a partial payment made upon a promissory note, after due and before the statute of limitations has run, fixes the date of such payment as the time from which the statute begins to run.

2. The statute of limitations does not mean that the debt has been paid. It is a personal privilege which the law gives to the debtor, whereby he may say that the debt is stale, and for that reason should not be enforced.

3. This statute of Washington, however, says to the debtor that if he acknowledge the indebtedness by making a payment thereon, it becomes an acknowledgment that the debt has not been discharged, and recognizes the debt as in existence, and fixes the date of payment as a new date from which the statute begins to run.

4. This statute in effect declares that the making of a partial payment by a debtor, after the maturity of the debt and before the statute of limitations has run, is a waiver of the debtor's privilege to claim the maturity of the debt as the date from which the statute begins to run.

5. Where a resident of this state goes into the state of Washington and makes a partial payment upon a Washington contract after its maturity, and before such contract is barred by the statute of limitations of that state, upon his return to this state the contract follows him as made, and is enforceable under the laws of this state, and the statute of limitations of this state begins to run upon his re-entry into this state, after such payment.

6. In order to determine the application of the statute of limitations of this state to a contract entered into in the state of Washington, it is necessary to examine said contract and the laws of the state of Washington for the purpose of determining the date from which the statute runs.

7. A general finding that all the material allegations of the answer are supported by the evidence and true, and that all the material allegations of the complaint in conflict with the foregoing findings are unsupported by the evidence and untrue, is insufficient to support a judgment.

8. Whether residence within this state for the statutory period will prevail as a plea in bar upon a written contract depends upon the nature of the contract, its maturity, and the date from which the statute begins to run.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Judgment reversed and a new trial ordered. Costs awarded to appellant.

An action for debt. Judgment for defendant. Reversed.

I. N Smith, for Appellant.

These notes, being Washington contracts, were subject to the law of revivor under the laws of Washington. (Leman v. Cunningham, 12 Idaho 135, 85 P. 212; Mills v. Duryee, 7 Cranch, 481, 3 L.Ed. 411.) The laws of a state in which a contract is made are an integral part thereof and form part of its obligation. (McCracken v. Hayward, 2 How. 608, 11 ed. 397; Bronson v. Kinzie, 1 How. 311, 11 L.Ed. 143; 8 Cyc. 998; 9 Cyc. 581; 11 Cent. Dig., sec. 750.)

The indorsements of payment on the notes in the handwriting of the debtor are effectual in the state of Washington, under the laws set forth in the complaint, and as construed by the supreme court of Washington in Kosloski v. Yesler, 2 Wash. Ter. 407, 8 P. 493; Ah How v. Furth, 13 Wash. 550, 43 P. 639. When Sweeney left Washington in 1897, the notes set forth in the second and third causes of action were not barred, either under the laws of Washington or of Idaho. (Sec. 4798, Ballinger's Ann. Codes; sec. 4051, Rev. Stat. Idaho.) When Sweeney left Washington his absence from the state tolled the statute, and these last two notes never have been barred, under the laws of Washington, because his absence from the state would prevent the running of the statute. (Sec. 4069, Rev. Stat. of Idaho.)

Geo. W. Tannahill, for Respondent.

In cases of the statutes of limitations the law of the forum should govern. (Adams Express Co. v. Walker, 119 Ky. 121, 83 S.W. 106, 67 L. R. A. 415.) "The plea of the statute of limitations in an action in our state on a judgment obtained in another state is a plea to the remedy, and consequently the lex fori must prevail in such an action. (Arrington v. Arrington, 127 N.C. 190, 80 Am. St. Rep. 791, 37 S.E. 212, 52 L. R. A. 204; McElmoyle v. Cohen, 13 Pet. 312, 10 L.Ed. 177; Drake v. Biglow, 93 Minn. 112, 100 N.W. 664; Montague v. Cummings, 119 Ga. 139, 45 S.E. 979; Krogg v. Atlanta & W. P. Ry. Co., 77 Ga. 202, 4 Am. St. Rep. 79; Blackburn v. Morton, 18 Ark. 384; Thompson v. Tioga R. Co., 36 Barb. 79. See note to O'Shields v. Georgia P. Ry. Co., 83 Ga. 621, 10 S.E. 268, 6 L. R. A. 152; Medbury v. Hopkins, 3 Conn. 472; Pulsifer v. Greene, 96 Me. 438, 52 A. 921; Lamberton v. Grant, 94 Me. 508, 80 Am. St. Rep. 415, 48 A. 127.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This action was commenced May 3, 1905. The complaint contains three causes of action. The first is founded upon a promissory note executed by defendant to plaintiff, for the sum of $ 700, dated July, 1890, and payable on or before October 1, 1890. The place of payment is not stated in the note. The note, however, is dated at Walla Walla, Washington. It is alleged that payments were made upon said note as follows: Dec. 10, 1890, $ 70.00; Dec. 10, 1901, $ 125.00; that the latter payment was indorsed upon said note by the defendant himself at the time the payment was made. Then follow allegations as to nonpayment and amount alleged to be due. The statutes of the state of Washington are set forth as a part of said cause of action, as follows:

Sec. 4816, vol. 2, of Ballinger's Ann. Codes:

"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 chapter, unless the same is contained in some writing signed by the party to be charged thereby; but this shall not alter the effect of any payment of principal or interest."

Sec. 4817, vol. 2 of Ballinger's Ann. Codes:

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

Sec. 4798 of Ballinger's Ann. Codes:

"Within six years: 1. An action upon a judgment and, etc. . . . 2. An action upon a contract in writing or liability, express or implied, arising out of a written agreement. 3. An action for rent and, etc. . . . " (the said statute being the statute of limitations relative to contracts in writing).

The second cause of action is founded upon a promissory note alleged to have been executed by defendant to plaintiff at Walla Walla, Washington, June 8, 1893, for the sum of $ 2,000, payable four months after date, at the Baker-Boyer National Bank of Walla Walla, Washington. It is also alleged that payments were made upon said note as follows: Nov. 20, 1898, $ 20.00; Nov. 13, 1901, $ 500; that the last payment was indorsed on said note by defendant himself at the time the said payment was made. Then follow allegations of nonpayment, the amount due, and the reasonableness of the attorney's fees claimed and provided for in said note, and also the same allegations as to the statutes of Washington as set forth in the first cause of action.

The third cause of action is founded upon a promissory note alleged to have been executed by defendant to plaintiff at Walla Walla, Washington, on October 5, 1893, for the sum of $ 1,700, payable 60 days after date, at the First National Bank of Walla Walla, Washington. It is also alleged that payments were made upon said note as follows: January 27, 1898, $ 50; November 14, 1901, $ 500; that the last payment was indorsed on said note by the defendant himself at the time said payment was made. Then follow allegations of nonpayment, the amount still due, the reasonableness of the attorney's fees claimed as provided for in said note, and also the same allegations as to the statutes of Washington as set forth in the first cause of action.

Thereafter an amendment was filed to the complaint in which the plaintiff alleged that within a period of five years last past prior to the commencement of this action, said defendant acknowledged the existence of the said indebtedness in an instrument in writing, signed by himself, and that the said defendant is the person to be charged with such acknowledgment and with such indebtedness. By such acknowledgment said defendant promised and agreed to pay the said indebtedness set out in the first cause of action. Then follow the same allegations as to the second and third causes of action.

The defendant in his answer admits the execution of the several notes set forth in the complaint, but denies that said notes were executed or delivered in the state of Washington, and denies that they are Washington contracts; denies that there is anything due upon said notes, and denies that the payments alleged to have been indorsed upon said notes by the defendant were so indorsed by the defendant; denies that defendant acknowledged the existence of said indebtedness in writing; alleges that defendant has no knowledge or information as to whether or not the payments shown to have been made upon said notes were, in fact, made, and on that ground denies the same; alleges want of knowledge or...