| Mont. | Jul 10, 1897
-The question in this case,' most elaborately discussed by respective counsel in their oral argument and briefs on file, is whether or not a part payment by one of the several joint makers of a note after it is due, without the consent or ratification of the others, extends the time prescribed by the statute for an action thereon as to all.
A leading authority relied upon by respondent is a decision rendered by Chief Justice Shaw in the case of Sigourney v. Drury, 14 Pick. 387. Among the authorities for the view contended for by appellant, we have deemed especially worthy of our consideration the cases of Willoughby v. Irish (Minn.) 27 N.W. 379" court="Minn." date_filed="1886-03-09" href="https://app.midpage.ai/document/willoughby-v-irish-7964959?utm_source=webapp" opinion_id="7964959">27 N. W. 379, and Cowhick v. Shingle (Wyo.) 37 P. 689" court="Wyo." date_filed="1894-09-21" href="https://app.midpage.ai/document/cowhick-v-shingle-6587380?utm_source=webapp" opinion_id="6587380">37 Pac. 689. The Minnesota decision construes a statute almost identical in its terms with Section 53, First Division of the Compiled Statutes of Montana 1887. In the Wyoming case the authorities on both sides of the proposition are cited and discussed in detail. The courts of this country are in conflict, but in our opinion the more modern and better reasoned decisions answer the question in the negative. We hold, therefore, that, under
We come next to the evidence on which the judgment for plaintiff is based. A careful analysis of the statements made by the witness Weirick forces us to the conclusion that his evidence as to the understanding between Leighton and the other mortgagees was the result of a mere opinion entertained by himself, without any actual knowledge as a basis for it. It is true, he declares positively that Leighton was authorized to sell the property he had bought in, and apply the proceeds of sales from time to time on the note. But, however positive his assertion may be, he destroys its force by finally admitting that ‘ ‘it was his opinion that there was such an understanding;” “that he understood there was such an understanding. ’ ’ It was incumbent upon the plaintiff to prove that the note was not barred as to the defendant, Bullard, and the only evidence offered by it on this issue was that of Weirick. The lower court should have granted a new trial for insufficiency of the evidence.
Moreover, it is apparent, from an inspection of their first finding, that the jury believed that Leighton, as president of the bank, should have applied and indorsed the entire proceeds of the mortgage sale, — namely, $422.60, — on April 30, 1886, when he receipted to the sheriff for that sum of money. It is inconsistent with some of the other findings returned. These findings, however, were mere conclusions of law, and it is unnecessary to recite them.
For these reasons, the judgment is reversed, and the cause is remanded, with directions to the lower court to grant anew trial.
Reversed and Remanded,