Lyle v. Esser

Cassodat, C. J. The trial of the issue of fact raised by the pleading's necessarily required the examination of a long account, and hence there was no error in granting the reference. E. S. sec. 2864; Turner v. Nachtsheim, 71 Wis. 16; Sutton v. Wegner, 74 Wis. 347; Briggs v. Hiles, 79 Wis. 571. Our statutes provide, in effect, that no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the cause out of the operation of the statutes of limitation, unless the same be contained in some writing signed by the party to be charged thereby (sec. 4243, E. S.); but that nothing contained in that section shall alter, take away, or lessen the effect of a payment of any principal or interest made by any person, but that no indorsement or memorandum of any such payment, written or made upon any promissory note, bill of exchange, or other writing, by or on behalf of the holder thereof, shall be deemed sufficient proof of the payment, so as to take the case out of the operation of the statutes of limitation. E. S. sec. 4247. Under these statutes it is very manifest that no oral acknowledgment or promise of the debtor can operate to take a case out of the statute. There is no pretense that the defendant has ever given or signed any such written acknowledgment or promise. It is also manifest from the language of the statute that no indorsement or memorandum of any such payment, made by the holder of such instrument without the concurrence of the debtor and actual payment, can operate -to take the case out of the statute. It has been held that even an indorsement of a part payment, in the handwriting of the debtor but not signed by him, will not prevent the operation of the statute, if no money or valuable consideration actually passed between the parties, even if they at the time orally agreed that it should be deemed a payment. Blanchard v. Blanchard, 122 Mass. 558. But under the statute a part payment actually made by the [240] debtor has tbe same effect, as to taking the case out of the statute, as a written acknowledgment or promise to pay the debt, signed by the debtor. To have that effect, however, the debtor must make the part payment on the debt in suit. By making such part payment the debtor admits the balance of the debt to be. due, and impliedly agrees to pay it. Tippets v. Heane, 1 Cromp., M. & R. 252; Waters v. Tompkins, 2 Cromp., M. & R. 723. But, where there are two clear and undisputed debts, the case is not taken out of the statute, as to either debt, by evidence of a part payment within six years, not specifically appropriated to the one debt or the other. Burn v. Boulton, 52 Eng. C. L. 176; Pond v. Williams, 1 Gray, 630. So it would seem that the part payment, to have the effect of taking the case out of the statute, must be made to the creditor or his agent, or to some one who stands in the relation of personal representative. Clark v. Hooper, 10 Bing. 480; Stamford, S. & B. Banking Co. v. Smith [1892], 1 Q. B. 769. Such part payment may be shown, however, by any competent evidence. It does nob require an express declaration of the debtor at the time of making it. Waters v. Tompkins, supra. This court has held that part payment of a debt, after the statute has run, will have the same effect as though paid before the statute had run. Engmann v. Estate of Immel, 59 Wis. 219, 259. Here it would seem that the note was given for the stated balance of the book account, but the account was continued thereafter, and payments credited thereon, right álong, as though no note had been given. The state of the account, as found, indicates pretty clearly that the several payments made were intended by the debtor to apply upon the note as well as the book account. The defendant testified to the effect that the plaintiff never 'asked him to pay interest on the note; that he paid it on his account; that the plaintiff told him once that his account was paid, except the note; [241] that the plaintiff asked him for money, and he always paid on account, and always told the plaintiff to give him credit for what he paid in; that the plaintiff wrote him a letter (he thought, in 1893) asking for money; that he then thought his account was all paid up; but that he went right after he received the letter, and paid the plaintiff $30. The referee was justified in finding that the defendant never intended to make any gift to the plaintiff. On the contrary, it is apparent, from the dealings and all the circumstances, that the plaintiff exacted the money because it was due him on the note, and that the defendant made the payment because he knew he was indebted to the plaintiff on the note. The payment was therefore made as a part payment on the note. Marshall v. Holmes, 68 Wis. 556. By the Court.— The judgment of the circuit court is 'affirmed.