Tritthart v. Tritthart

• Decision Date: 07 June 1913
• Citation: 133 P. 121,24 Idaho 186
• Parties: G. W. TRITTHART, Appellant, v. MARTHA TRITTHART, Administratrix of the Estate of C. F. TRITTHART, Deceased, Respondent
• Court: Idaho Supreme Court

133 P. 121

24 Idaho 186

G. W. TRITTHART, Appellant, v. MARTHA TRITTHART, Administratrix of the Estate of C. F. TRITTHART, Deceased, Respondent

Supreme Court of Idaho

June 7, 1913

NEGOTIABLE INSTRUMENT-PAYMENT-SUFFICIENCY OF EVIDENCE-NONSUIT.

1. Where a promissory note is executed and delivered to a bank by two persons, and the note upon its face contains the following language, "we promise to pay," such note upon its face is a joint and several liability, and such note is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.

2. In an action by G. W. T. against the administratrix of C. F. T deceased, to recover upon an implied contract, where it is claimed that G. W. T. signed as surety upon a note wherein C F. T. was principal, and such note was executed for a debt of C. F. T., and the evidence shows that the note was in the possession of G. W. T., and was introduced in evidence, and that there was indorsed upon said note "paid by G. W T.," such note and the indorsement, with other evidence that the same was paid by G. W. T., is sufficient to establish a prima facie case, and it is error of the trial court to grant a nonsuit.

3. Where a motion for a nonsuit is made at the conclusion of plaintiff's evidence, and certain grounds are assigned in such motion, and the motion is sustained, and an appeal is taken from the order and judgment of the court upon said motion, this court will not consider errors assigned by counsel in their brief which were not included in the motion for a nonsuit.

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.

Action upon a promissory note. Nonsuit granted. Appeal from order. Reversed.

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

J. D. Hedrick, for Appellant.

The plaintiff, under sec. 5957, Rev. Codes, could not testify as to the nonpayment of the note, but, in the absence of testimony to the contrary, the note itself, as stated above, is sufficient evidence of the nonpayment of the note to take the case to the jury. (Light v. Stevens, 159 Cal. 288, 113 P. 659; Sheffield v. Cleland, 19 Idaho 612, 115 P. 20.)

McFadden & Brodhead, for Respondent.

"Where two persons execute a note, one as principal and the other as surety, and a judgment obtained upon the note is paid by the surety, the obligation of the principal to repay the surety is not 'founded upon a written instrument' within the meaning of the statute." (Chipman v. Morrill, 20 Cal. 132; Miller v. Ziegler, 3 Utah 17, 5 P. 518; Guild v. McDaniels, 43 Kan. 548, 23 P. 607; Richter v. Henningsan, 110 Cal. 530, 42 P. 1077; Faires v. Cockrill, 88 Tex. 428, 31 S.W. 190, 639, 28 L. R. A. 528; Sparks v. Childers, 2 Ind.App. 187, 47 S.W. 316.)

STEWART, J. Ailshie, C. J., concurs. SULLIVAN, J., Dissenting.

OPINION

STEWART, J.

This is an action upon an implied contract for the recovery of the sum of $ 722.65 and interest. The complaint alleges that on the 26th day of August, 1906, the plaintiff, G. W. Tritthart, and Charles F. Tritthart, deceased, delivered to the First National Bank of Centralia, Indian Territory, their joint and several promissory note for the sum of $ 788.45, dated August 26, 1906; that the plaintiff received no consideration for the note, but signed the same as an accommodation for the said C. F. Tritthart; that C. F. Tritthart did not pay the note at maturity, and that plaintiff was compelled to pay the same, and did, on the 13th day of June, 1907, pay the sum of $ 788.95 in discharge of said note, and that no part of said note has been paid to the plaintiff except the sum of $ 150 on the 9th day of January, 1909, and $ 150 on the 10th day of February, 1910, and that there is due $ 722.65; that G. W. Tritthart died on the 28th day of July, 1911, and that Martha Tritthart was duly appointed administratrix of said estate, and that letters of administration were duly issued to her. Then follows an allegation to the effect that on the 6th of January, 1912, the claim set forth, duly verified by the oath of the attorney for the claimant, and upon which this action is founded, was duly presented in writing by the plaintiff to the defendant as such administratrix, for allowance, and that the same was rejected on the 22d day of January, 1912.

The defendant, as administratrix, filed an answer and denied all the allegations of the complaint, except the death of the deceased, her appointment as administratrix and the presentation of the claim as alleged in the complaint. Upon these issues a jury was called and the evidence taken, and upon the conclusion of the plaintiff's evidence the respondent made a motion for a nonsuit upon the ground that plaintiff had failed to sustain the material allegations of the complaint, and the jury was dismissed and judgment ordered for the defendant. This appeal is from that judgment.

It seems from the allegations of the complaint, and also the brief of counsel for appellant, that the appellant considered the action as an action upon a written contract. The answer of the respondent also indicates that the defendant considered the action to be an action upon a written contract, for in the answer the defendant has plead as a defense the statute of limitations, sec. 4052, Rev. Codes. This section prescribes the period within which actions other than for the recovery of real property shall be commenced: "Within five years: An action upon any contract, obligation, or liability founded upon an instrument in writing."

Counsel for respondent, however, in their brief and upon oral argument, contend and argue that the insertion in the answer of sec. 4052 was intended to have been sec. 4053. This latter section prescribes: "Within four years: An action upon a contract, obligation, or liability, not founded upon an instrument of writing"; and that under this contention this action cannot be sustained, because the claim of plaintiff is barred by the statute of limitations, sec. 4052.

This allegation, however, was not amended in the lower court, and the appellant does not contend in his brief, and did not upon oral argument contend, that a mistake was not made by the designation of sec. 4052 instead of sec. 4053.

We are of the opinion that respondent cannot urge this question in this court, because the same was not presented to the trial court. From the record it appears that the action is not barred by the statute of limitations, if the action is upon a written instrument; upon the other hand, if the action is upon an implied contract, the action is barred by sec. 4053. This question, however, was not raised in the lower court, and cannot be raised upon this appeal. The respondent is bound by the answer.

As to the character of the action, we think there can be no question. In paragraph 2 of the complaint it is alleged that the plaintiff received no consideration for the note, and it is alleged that he signed the same as an accommodation for the said C. F. Tritthart, at his request and upon his promise to pay the note at maturity. The rule of law under such facts is generally recognized to be, that a surety who pays a note may sue the maker at law upon an implied promise to indemnify him, or in equity upon the note, as being subrogated to the rights of the payee. The allegations of the complaint above quoted are not denied in the answer, and the allegations show that the plaintiff's obligation upon the note was that of suretyship. The right of action, therefore, was the right of action of a surety to recover reimbursement from his principal, which accrues when the surety pays the debt, and the obligation of the principal to repay the surety is not founded upon a written instrument within the meaning of the statute of limitations. (25 Cyc. 1113; Miller v. Zeigler, 3 Utah 17, 5 P. 518; Chipman v. Morrill, 20 Cal. 130; Guild v. McDaniels, 43 Kan. 548, 23 P. 607; Richter v. Henningsan, 110 Cal. 530, 42 P. 1077; Faires v. Cockrill, 88 Tex. 428, 31 S.W. 190, 639, 28 L. R. A. 528; Sparks v. Childers, 2 Indian Terr. 187, 47 S.W. 316.)

We think, therefore, that there can be no question in this case but that the action is upon an implied promise, and not upon a written instrument. The note may be received in evidence for what it shows, but the right of recovery is not upon the note.

The evidence consists entirely of the introduction of the promissory note and parts of a deposition. The note reads as follows:

"$ 788.45. Centralia, Ind. Ter., Aug. 26, 1906.

"6 months after date we promise to pay to the order of First National Bank of Centralia, I. T.

Seven Hundred Eighty eight 45/100 . . . . Dollars for value received, payable at the office of BANK OF CENTRALIA, Ind. Ter., with interest thereon at the rate of 8 per cent. per annum from maty. until paid, payable annually, and if the interest be not paid when due, the same shall become a part of the principal and bear the same rate of interest. We, the makers, sureties, guarantors and endorsers, severally waive presentment for payment, protest and notice of protest, and non-payment of this note, and consent that time of payment may be extended without notice thereof.

"P. O. Coadys Bluff, I. T.

"Due 2--26--1907.

"No. 1256.

(Signed) C. F. TRITTHART.

G. W. TRITTHART"

The indorsements upon the note are as follows:

"June 13, 1907

Int. to date

10.50

Prin.

788.45

"Paid by G. W. Tritthart.

798.95

"By cash, 150.00, January 9, 1909. By cash 150.00, Feb. 10, 1910."

It is admitted that the note was in the possession of the plaintiff when this action was commenced, and that he presented the same in evidence. The evidence shows, and the trial...