Vachon v. Ditz

Tolman, J. — This action was brought by respond- • ents as plaintiffs against the appellant Ditz, and one Koebsch, to recover upon an open account for goods [12] sold and delivered to them as co-partners, doing business under the name of Koebsch & Ditz. Koebsch was not served with process, and did not appear in the action. Ditz defended, and after a trial to the court sitting without a jury, judgment was rendered against him, from which he appeals. The trial court found that the partnership, of which appellant was a member, between April 22, 1908, and May 27, 1908, purchased merchandise from respondents and became indebted to them on that account in the sum of $1,621.05; that there had been paid and credited on such indebtedness $697.50 by the co-partnership, and that the last item entering into such credit was paid on September 16,1911. The transaction took place in Alaska, where all of the parties then resided, and the statutes of the Territory of Alaska, having been pleaded, the court found that the Alaska statute of limitations applicable would not bar an action on the account until the expiration of six years from the time the cause of action accrued, and that the time of the running of the statute must be computed from the date of the last payment. The court further found that the defendant co-partnership, and its members individually filed a petition in voluntary bankruptcy in the United States District Court of the Territory having jurisdiction, and such proceedings were had as resulted in the discharge of the co-partnership, and the co-partners individually, from all debts provable in bankruptcy which existed on the 5th day of May, 1909. No dividends were paid to creditors in such proceedings. And further, the court found that, in June, 1912, and again in June, 1915, and on a number of other occasions within six years immediately prior to the institution of this action, appellant Ditz orally promised respondents, in clear and un [13] equivocal language, that he would pay the balance of such indebtedness. There is an unusually sharp conflict in the evidence, and this appears to be peculiarly a case where the trial court, having seen the witnesses and observed their appearance and manner of testifying, had a decided advantage over this court, limited as it is to the written record; but, having studied that record and weighed all of the evidence as carefully as it is possible for us to do, we are satisfied that it does not preponderate against the findings of the trial court, and we therefore cannot disturb them. The facts found dispose of the defense of the statute of limitations, because the action was commenced within six years from the date of the last payment; and that payment having been made by the co-partners, or by one with the consent and by the authority of the other, neither can now claim the protection of the statute. It is vigorously contended that the action ivas barred by the discharge in bankruptcy, and it seems to be well settled that a partial payment made thereafter will not revive a debt discharged in bankruptcy. Remington, Bankruptcy, § 2716. It appears to be equally Avell settled, however, that a new promise made after the filing of the petition avíII reAdve the debt, and that such promise, if it be clear, distinct and unequivocal, is sufficient, even though it be oral. Remington, Bankruptcy, § 2718; 3 R. C. L. 326. The facts found on this issue dispose of this defense also. The judgment of the trial court is affirmed. Holcomb, C. J., Mount, Mitchell, and Main, JJ., concur.