Stockdale v. Horlacher

• Decision Date: 09 February 1937
• Docket Number: 26322.
• Citation: 64 P.2d 1015,189 Wash. 264
• Parties: STOCKDALE v. HORLACHER et al.
• Court: Washington Supreme Court

64 P.2d 1015

189 Wash. 264

STOCKDALE v. HORLACHER et al.

No. 26322.

Supreme Court of Washington, En Banc.

February 9, 1937

Appeal from Superior Court, Whitman County; R. L. McCroskey, Judge.

Action by E. B. Stockdale against Martin Horlacher and others. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Carl P Lang and John E. Orr, both of Spokane, for appellant.

H. J Welty and W. L. La Follette, both of Colfax, for respondents.

MAIN Justice.

The plaintiff brought this action for a judgment upon a promissory note and to foreclose a mortgage by which the note was secured. The defendant Albert Horlacher answered by general denial. Other defendants pleaded affirmatively the statute of limitations. A trial to the court without a jury resulted in findings of fact from which it was concluded that the plaintiff could not prevail. From the judgment entered dismissing the action as to all of the defendants, the plaintiff appeals.

The facts are these: December 29, 1924, the respondents Martin Horlacher and Walter Horlacher executed and delivered to the Bank of Rosalia their promissory note for the sum of $3500, payable one year after date and bearing interest at the rate of 8 per cent. per annum. On the same date, Martin Horlacher, who was at the time a bachelor, to secure the note, executed and delivered to the bank a mortgage covering a described quarter section of land in Whitman county. January 8, 1929, the bank assigned and transferred the note and mortgage to the appellant, E. B Stockdale. The note not having been paid, the present action was begun August 3, 1935.

Albert Horlacher owned a quarter section of land adjacent to that covered by the mortgage, and from the time of the giving of the mortgage until March, 1929, Albert and Martin operated, jointly, the two quarter sections. During this time, the interest on the note was paid, from time to time, out of the proceeds of the crops, and was paid by Albert acting as the agent for Martin. In March, 1929, a disagreement between Albert and Martin took place, and, as a result thereof, Martin took certain of the equipment and moved from the farm, locating near Cheney, in Spokane county. Thereafter Albert made two payments on the note, one by a note signed by him, dated December 29, 1929, for the sum of $280. An additional payment of $50 was made March 1, 1932, by Albert delivering to the bank a cow of that value. No other payments were made. Unless Albert Horlacher was the authorized agent of Martin in making the last two payments mentioned, the plea of the statute of limitations is good, because, if the note has been kept alive, it is by reason of these payments.

Subsequent to Martin's leaving the farm, to representatives of the bank he made statements to the effect that: 'Al [Albert] was to pay the interest, accumulated interest, and also the taxes, and he was quitting and was going to let Al farm the land.' At another time he stated: 'He said he turned it over to Al and he didn't figure on ever getting anything out of the place.' Again: 'He said that he had turned the farm over to Al, that Al was to pay the interest.'

There were other statements made by Martin, of like import, from time to time. Prior to the time the brothers separated and Martin moved away, the latter had a conversation with a representative of the bank with reference to giving the bank a deed in satisfaction of the mortgage and that Martin had promised that he would come to Rosalia on a certain day and fix the matter up, but, as the witness said: 'Well, he didn't do it. That's about all I know about that.'

In 1934, Albert and Martin, with representatives of the bank, went to Spokane to discuss with representatives of the Federal Land Bank a matter in which that bank was interested by reason of the fact that it had a first mortgage upon the land involved in this action. That transaction, however, bore no relation to the mortgage of Martin to the Bank of Rosalia.

As above indicated, the single question involved upon the appeal is whether the note and mortgage, as against Martin Horlacher, was barred by the six-year statute of limitations. It was barred unless the statute was tolled by one or both of the last two payments. Whether those payments operated to toll the statute, as above appears, depends upon whether Albert, in making them, was the agent of Martin. Agency is a...