95 Wash. 339 | Wash. | 1917
The plaintiff, Eureka Cedar Lumber & Shingle Company, seeks recovery of a balance due upon the purchase price of lumber and shingles sold by it to the defendant, Ered Knack, in the year 1911. Trial in the superior court without a jury resulted in findings and judgment in favor of the defendant, rested upon the ground that the action had not been commenced within the time limited by law. From this disposition of the cause, the plaintiff has appealed to this court.
The evidence is not before us. We have only to do with the question of what judgment should be rendered upon the facts found by the trial court. The controlling facts appearing in the findings may be summarized as follows: Between February 6 and August 8, 1911, appellant sold and delivered to respondent lumber and shingles of the value of $527.53, which sum respondent promised and agreed to pay therefor. Thereafter respondent made payments thereon on July 11 and December 23, 1911, so that there then remained due and unpaid a balance amounting to $321.68. No furr ther payments or credits were made reducing this balance, as we shall assume for argument’s sake, until February, 1915, more than three years following the payment made on December 23, 1911. It is, therefore, apparent that appellant’s cause of action is barred by the three-year statute of limitation relating to recovery upon unwritten contracts (Bern. Code, § 159), unless the bar of the statute has been avoided by a credit of $24.50 which was made by appellant upon the account in respondent’s favor in February, 1915, which appellant claims was assented to by respondent under such circumstances as to amount to a payment upon the debt and acknowledgment of the balance due thereon at that time.
The facts leading up to and attending the making of this credit in respondent’s favor are as follows: In October, 1914, appellant placed the account, duly itemized, and also showing an item of $32 drayage in addition to the $321.68 bal
Did the fact that this payment of $24.50 was so made by respondent after the statute had fully run its three-year course remove the bar of the statute? We think it did. The sections of Rem. Code relating to extension of the time of the running of, and the removal of the bar of the statute after it has run its course, are the following:
“No acknowledgment or promise shall be sufficient evidence of a new continuing contract whereby to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.” Rem. Code, § 176.
“When any payment of principal or interest has been or shall be made upon any existing contract, whether it be a bill of exchange, promissory note, bond, or other evidence of indebtedness, if such payment be made after the same shall*343 have become due, the limitation shall commence from the time the last payment was made.” Rem. Code, § 177.
This is not a question of a removal of the bar of the statute by an acknowledgment or promise in writing. We quote § 176, and especially the concluding clause thereof, as having some bearing upon the meaning of the language of § 177. Manifestly there would be no necessity of invoking the provision of § 176 to remove the bar of the statute except after the statute has run its course, because there would. not until then be any occasion to acknowledge or promise in writing to pay a debt in order to avoid the bar of the statute. This suggests the thought that the words, “but this section shall not alter the effect of the payment of any principal and interest,” as used in § 176, have reference to the removal of the bar of the statute after it has run its course, as well as the extension of the time of the running of the statute before it has run its course. This lends support to the view that the language of § 177, relating to the tolling of the statute by payment, contemplates that payment shall have the same effect whether made before or after the statute has run its course. Such was the holding of the Wisconsin court interpreting a statute similar to ours in Engmann v. Estate of Immel, 59 Wis. 249, 18 N. W. 182, and Marshall v. Holmes, 68 Wis. 555, 32 N. W. 685. In Ebersole v. Omaha Nat. Bank, 71 Neb. 778, 99 N. W. 664, having under consideration this question in the light of a statute much like ours, the court said:
“The statute enacts (Code Civ. Proc., § 22) : ‘In any cause founded on contract, when any part of the principal or interest shall have been paid, ... an action may be brought in such case within the period prescribed for the same, after such payment.’ The section provides that the debt may also be revived by a new promise or acknowledgment in writing, so that it would seem that a part payment does not effect the removal of the bar, because of being evidence of a new promise or of an acknowledgment, which are void if not written, but because of its own proper vigor.”
“Nothing contained in the two preceding sections shall alter, take away or lessen the effect of a payment of any principal or interest made by any person whatever.”
which is in substance the same as the concluding clause of our § 176, above quoted, and is not a positive declaration of the effect of payment, as is found in our § 177, above quoted. Shannon v. Austin, 67 Mo. 485; Johnson v. Johnson, 81 Mo. 331; Miller v. Miller, 169 Mo. App. 432, 155 S. W. 76.
Now, even apart from § 176 and the decisions of the courts above noticed, we would see no escape from reading the language of § 177 as meaning that a payment made upon the debt after the statute had run its course would be as effectual to remove the bar as a payment made before would extend the running of the statute, for we are plainly told by the language of that section that it is the payment “upon any. eocisting contract” which starts the statute to running anew from the time of such payment. It is elementary that the statute does not affect the legal existence of the contract but only the remedy (Miller v. Miller, supra) ; hence it is plain that a payment upon such contract is a payment upon a legally “existing contract,” and, therefore, extends the running, or removes the bar, of the statute, regardless of the time of payment. The exact question, apparently, has not been before this court, but in Damon v. Leque, 17 Wash. 573, 50 Pac. 485, and Stubblefield v. McAuliff, 20 Wash. 442, 55 Pac. 637, observations are made by the court which plainly indicate that the court recognized this to be the law, though such observations may not have been necessary to the decision in those cases.
We conclude that the facts found by the trial court plainly indicate that the credit of $24.50, asked for and given
“The payment must be made under such circumstances as to show an intentional acknowledgment by the debtor of his liability for the whole debt as of the date of payment from which arises a new implied promise, supported by the original consideration, to pay the residue.”
The trial court found that there is due to appellant from respondent, after allowing the credit of $21.50, the sum of $297.18, with interest, which appellant would be entitled to recover “were it not for the fact that, in the opinion of the court, said account is barred by the statute of limitations.” What we have said leads to the conclusion that appellant is entitled to have judgment in its favor against respondent for that sum, together with legal interest from the 23d day of December, 1911. The judgment of the trial court is reversed, with direction to enter its judgment in harmony with the views herein expressed.
Ellis, C. J., Mount, and Holcomb, JJ., concur.