Shanks v. Clark

Kirby, J. Appellant’s first assignment, that the court erred in holding her cause of action on the note barred under the 5-year statute of limitations, is well taken. The statute, § 6955, C. & M. Digest, provides: “Action on promissory notes, and other instruments in writing, not under seal, shall be commenced within 5 years after the cause of action shall accrue, and not-afterwards.” It has long been the settled rule that the maker has the whole of the day upon which the note becomes due in which to pay it, and that he cannot be sued until the next day, the day upon which the cause of action accrues. Zackery v. Brown, 17 Ark. 442; Holland v. Clark, 32 Ark. 697; Moore v. Horsley, 42 Ark. 163. In Peay v. Pulaski Co., 103 Ark. 601, 148 S. W. 491, the court said: “The rule for computing time in statute of limitations in this State is to exclude the first day and include the last day,” and, although the statute of limitations relative to promissory notes was not under consideration in that case, the rule as announced is not in conflict with the holding here, since the makers had the whole of the day upon which the note became due, one year after date, May 26,1921, in which to pay it, the holder’s cause of action did not accrue until the next day, the first day upon which suit could be brought. The statute of limitations pleaded requires that an action on promissory notes shall be commenced within 5 years after the cause of action shall accrue, and not afterward. Since the cause of action did not accrue until the next day after May 26, 1921, upon which the note was due, and the suit was brought on May 26, 1926, the action was commenced within 5 years-after the cause of action accrued, and was not barred by the statute, as. the court erroneously held. - The note given and sued on, disregarding the printed matter above it, “Guaranty Loan Fund for the Mutual Fire Insurance Association of Arkansas,” appears to be an ordinary promissory note signed by the individuals, as makers, with designation of agency affixed to their signatures respectively, as president, secretary, and. treasurer, the appellees against whom judgment was rendered, and the other makers, upon Avhom no service was had, as trustees. The association Avas still in the promotion stage, the corporation not having been organized, when the note was executed, and the appellees did not sign its name by them as officers of the association, but signed it as such officers without stating for Avhom or what company they were acting, and became personally liable to the payment of the note according to its terms. Lawrence County Bank v. Arendt, 69 Ark. 406, 65 S. W. 1052. The parol testimony was inadmissible to show that the note, which, considered by itself, appeared to be given for money owing to or borrowed from the payee, was not to be paid at all, except out of a surplus to be accumulated by a corporation thereafter to be organized, and was but evidence of a'purchase of stock or membership in such corporation. The court found, however, notwithstanding the admission of this testimony, that the signers of the note were personally bound to the payment, and such finding was supported by the testimony. For the error designated in holding the cause of action barred by the statute of limitations, the judgment must be reversed, and, since the case appears to have been fully developed, judgment will be rendered here for. the appellant in the amount of the note sued on, with interest. It is so ordered.