Van Patten v. Waugh

• Court: Iowa Supreme Court
• Writing for the Court: LADD, J.
• Citation: Van Patten v. Waugh, 122 Iowa 302, 98 N.W. 119 (Iowa 1904)
• Decision Date: 21 January 1904
• Parties: F. V. VAN PATTEN v. JESSIE WAUGH, Administratrix of Frank P. Van Patten, Deceased, Appellant

98 N.W. 119

122 Iowa 302

F. V. VAN PATTEN v. JESSIE WAUGH, Administratrix of Frank P. Van Patten, Deceased, Appellant

Supreme Court of Iowa, Des Moines

January 21, 1904

Appeal from Jackson District Court.--HON. A. J. HOUSE, Judge.

ON the 25th day of March, 1899, F. V. Van Patten filed two claims against the estate of Frank P. Van Patten, deceased. In each the copy of a promissory note of $ 500 dated March 1, 1893 one payable in one year and the other in two years to G. W Vine, and signed by F. P. Van Patten and F. V. Van Patten was set out, and the following affidavit attached:

"State of Iowa Jackson County--ss.: I, F. P. Van Patten, being duly sworn, on oath say that I am the owner of the note, a copy of which is hereto attached; that the same is genuine, just correct, and wholly unpaid; that the sum of $ 500 and interest is now justly due thereon from said estate to me. F. V. Van Patten.

"Subscribed and sworn before me and in my presence by said F. V. Van Patten this 2d day of March, 1899. L. W. Hubbard, Notary Public."

On September 29, 1900, the administratrix answered, denying that anything was due on the notes, and also that plaintiff was owner thereof, and averred that the notes were joint, and fully paid in the lifetime of deceased. November 1, 1900, the plaintiff, having employed an attorney, filed an amendment to his claim, in which he alleged that the payee in the notes was owner of a certain tract of land, which deceased bought; that said notes were executed in payment of the purchase price by the deceased, and that plaintiff signed said notes as surety only; that plaintiff was compelled to, and did, pay said notes at maturity; that the amount so paid, with interest, is still due and unpaid. The administratrix put in issue these allegations, and especially pleaded the statute of limitations. Trial was had without a jury, and the claims allowed. The administratrix appeals.

Reversed.

Levi Keck and W. C. Gregory for appellant.

D. A. Wynkoop for appellee.

OPINION

LADD, J.

The claims herein were first filed against the defendant as administratrix of the estate of Frank P. Van Patten, deceased, March 25, 1899, and within five years after their payment by the plaintiff in the fall of 1894. At that time the demand for their allowance was based upon plaintiff's affidavit that he was owner of the notes, and that they were entirely unpaid. This filing was equivalent to the beginning of an action. Fritz v. Fritz, 93 Iowa 27, 61 N.W. 169. Not until November 1, 1900, more than five years after such payment, were the claims amended so as to assert that plaintiff had signed the notes as surety of deceased, and had subsequently paid them. A surety, in paying a note on which he is obligated as such, does not become owner of the note, and cannot maintain an action thereon. His remedy is on an implied promise of the principal to indemnify him for the amount actually paid for his benefit. As this promise is not in writing, an action thereon is barred in five years from the time it takes effect. Harrah v. Jacobs, 75 Iowa 72, 39 N.W. 187; Lamb v. Withrow, 31 Iowa 164.

As more than five years from the time plaintiff paid the notes had elapsed when the amendment was filed, appellant contends that the claims were barred by the statute of limitations. This, of necessity, depends upon whether the cause of action therein stated was different and distinct from that stated when the claims were first filed. That they were we think is susceptible of demonstration. Originally the claims rested on the failure to pay the written obligation to Vine--the amount specified in the notes, with seven per cent interest and a reasonable attorney's fee. Under the amendment the claims are based upon an implied, not written, promise to pay plaintiff (not Vine or order) the amount actually expended by plaintiff in the discharge of his obligations as surety (not that named in notes), with interest from the date of such payment (not the date of the note) at six per cent. (not seven per cent., as agreed in the note), without attorney's fee. The contracts are not the same, neither are the debts, though incidentally growing out of the same instruments. The proof essential to establish the claims when first filed--ownership and nonpayment of the notes--would defeat the claims as amended. What constitutes a particular cause of action was considered in Box v. C., R. I. & P. Ry. Co., 107 Iowa 660; and the distinction between it and the subject of the action pointed out in approving a quotation from Rodgers v. Association, 17 S.C. 406: "The subject of the action is what was formerly understood as the subject-matter of the action. * * * The cause of the action is the right claimed or the wrong suffered by the plaintiff, on the one hand, and the duty or delict of de...