Vollmer Clearwater Co., Ltd. v. Hines

• Decision Date: 12 July 1930
• Docket Number: 5464
• Citation: 290 P. 397,49 Idaho 563
• Parties: THE VOLLMER CLEARWATER COMPANY, LTD., Appellant, v. GEORGE HINES, Respondent
• Court: Idaho Supreme Court

290 P. 397

49 Idaho 563

THE VOLLMER CLEARWATER COMPANY, LTD., Appellant, v. GEORGE HINES, Respondent

No. 5464

Supreme Court of Idaho

July 12, 1930

LIMITATION OF ACTIONS - TOLLING OF STATUTE - PART PAYMENT - STATUTORY AMENDMENT-WHEN EFFECTIVE.

1. Statutory amendment providing that payment is equivalent to new promise in writing to pay residue of debt applies to all actions thereafter brought (C. S., sec. 6631, as amended by Laws 1923, chap. 49).

2. Part payment on note March 13, 1923, was equivalent to new promise in writing of date of payment and tolled statute to that date (C. S., sec. 6631, as amended by Laws 1923, chap. 49).

APPEAL from the District Court of the Tenth Judicial District, for Lewis County. Hon. Miles S. Johnson, Judge.

Action upon a promissory note. Judgment for defendant. Reversed.

Judgment reversed, with directions. Costs to appellant.

Tannahill & Leeper and R. E. Durham, for Appellant.

Sec 6631, amended by chap. 49, C. S., 1923, Sess. Laws, affects the legal remedy and not the substantive law. (Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483; Hopkins v. Lincoln Trust Co., 115 Misc. 257, 187 N.Y.S. 883.)

Statutes regulating legal remedies operate on existing conditions as well as conditions arising after their enactment. (Christiano v. Christiano, 204 A.D. 47, 197 N.Y.S 72; Peavy v. McCombs, 26 Idaho 143, 140 P. 965; Sansberry v. Hughes, 174 Ind. 638, 92 N.E. 783; 1 Wood on Limitations, 4th ed., p. 73; Phil H. Pierce Co v. Watkins, 114 Tex. 153, 263 S.W. 905; Cahill v. Wissner, 183 A.D. 659, 170 N.Y.S. 1000; Brainard v. Coeur d'Alene A. Min. Co., 35 Idaho 742, 208 P. 855; Bensley v. Ellis, 39 Cal. 309; Orman v. Van Arsdol, 12 N.M. 344. 78 P. 48, 67 L. R. A. 438.)

The statute regulating a remedy in effect at time suit is instituted controls the entire transaction. (Southgate v. Frier, 8 Okla. 435, 57 P. 841; Sohn v. Waterson, 17 Wall. (U.S.) 596, 21 L.Ed. 737; Huber v. Zimmerman, 8 Okla. 573, 58 P. 737; Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483; 37 C. J., p. 695, note 29.)

If there is any doubt that the enlarged remedy of chap. 49, 1923 Sess. Laws, applies to past conditions, such doubt must be resolved in favor of creditor. (McManus v. Park, 287 Mo. 109, 229 S.W. 211; Schneider v. Hussey, 2 Idaho 8, 1 P. 343.)

P. W. Mitchell, for Respondent.

This court has consistently adhered to the rule adopted by the supreme court and followed by almost every supreme court of the different states, that it will not construe a statute to be retrospective in its effect and operation unless the intention of the legislature cannot be otherwise reconciled. This was followed in Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81; Bellevue State Bank v. Lilya, 35 Idaho 270, 205 P. 893; Peavy v. McCombs, 26 Idaho 143, 140 P. 965; Cook v. Massey, 38 Idaho 264, 35 A. L. R. 200, 220 P. 1088; Nampa & Meridian Irr. Dist. v. Barker, 38 Idaho 529, 223 P. 529.

The new law as provided in 1923 Sess. Laws, chap. 49. is only an amendment--an addition to the law as it existed at the time of its passage. It simply enlarges the provision of sec. 6631 of our statute. The distinction is clearly made in such amendments in 25 R. C. L., p. 795, sec. 43.

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

McNAUGHTON, J.

This is an action upon a promissory note. The due date of the note was October 1, 1922, and on that date the cause of action accrued. The complaint was filed and this action was begun on the twenty-seventh day of October, 1927, five years and twenty-seven days after the note became due. The limitation is five years unless tolled.

The only defense interposed is the statute of limitations.

Plaintiff pleads a letter received by it and signed by the defendant, dated March 30, 1926, in which it is claimed defendant recognized the debt. Plaintiff also pleads a payment made by defendant on March 13, 1923, and relies upon this letter and this payment each as tolling the statute.

The trial court found that the letter contained no promise or implied promise to pay and was insufficient to toll the statute.

The trial court also found that part payment on the note was made March 13, 1923, but concluded that the statute relied upon by plaintiff, to wit: C. S., sec. 6631, as amended by chap. 49 of the Laws of 1923, did not apply; holding that the payment having been made before the amendment took effect, the section as amended did not apply.

Plaintiff appealed and specifies the ruling of the trial court above referred to as error. We shall consider the second point first.

Chapter 49, Laws of 1923, is amendatory of C. S., sec. 6631. The amendatory part is in italics. The amended section reads:

"Section 1. That Section 6631 of Chapter 250 of the Complied Statutes of Idaho be, and the same is, hereby amended to read as follows:

"Section 6631. No acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby; but any payment of principal or interest is equivalent to a new promise in writing, duly signed, to pay the residue of the debt.

"Sec. 2. All acts and parts of acts in conflict herewith are hereby repealed.

"Approved February 24, 1923."

There was no emergency clause and the act did not become effective until after the date of payment in question. In passing on this point we are confronted with the duty of construing this amendment to our statute of limitations. We must decide whether the intent of the legislature as expressed was that the statute as amended should apply immediately on its becoming effective to all causes of action, and all payments made on account of indebtedness, or only as to payments made thereafter, or causes of action accruing thereafter.

The courts are not in harmony on rules of construction applied to new statute of limitation, or those lengthening or shortening the limitation. Some courts hold that to apply such a statute to causes of action existing at the time the statute becomes effective is to give the statute a retrospective effect, and should be avoided in the absence of a clear expression requiring such application. The Colorado court has adopted this rule. (Jones v. O'Connell, 87 Colo. 103, 285 P. 762.)

Other courts in considering the doctrine against giving statutes a retrospective interpretation find no reason for applying the rule to legislation not effecting substantive rights, such as statutes of limitation or other purely remedial statutes, and they hold limitation statutes are meant to apply to all actions begun subsequently unless a different intent appears. (Sansberry v. Hughes, 174 Ind. 638, 92 N.E. 783.)

This court has recognized the rule against retroactive or retrospective statutes, especially in respect of substantive rights; and in Peavy v. McCombs, 26 Idaho 143, 140 P. 965, 969, Judge McCarthy, speaking for the court, said:

"It should be borne in mind that (Sess. Laws 1913) chap. 58 is a remedial statute, or one relating to procedure. It does not impair any existing right or indebtedness, but simply relates to the method of procedure which shall be followed in paying an indebtedness. The provision of sec. 101 of chap. 58 that the county auditor shall furnish the board with a statement of the amount of outstanding warrants for the current year and for prior years also enforces the conclusion that the legislature did not mean to confine the operation of the law to warrants issued after the law went into...