King v. Rodgers
195 P. 598
Kan.
1921
Check Treatment

*312The opinion of the court was delivered by

Mason, J.:

On August 20, 1912, Peter Gillespie and his sister, Nellie Rodgers, entered into a written contract with Dr. L. R. King, by which they agreed to pay him $350, Nellie Rodgers also agreeing that in case Peter Gillespie died without having, рaid it she would pay it from the proceeds of a certificate in a fraternal ordеr of which she was ‍​​‌‌‌​​‌‌‌​​‌​‌​‌‌​‌​​​‌​‌​‌​​‌​​​‌​​‌​​​‌‌​‌‌​​‍the beneficiary. Peter Gillespie died June 21, 1919, without any payment having been mаde to Doctor King. On October 4, 1919, Doctor King brought this action against Nellie Rodgers seeking to recover from her upon such contract the sum therein named, with interest. A demurrer to the petition was overruled, and the defendant appeals.

The case turns upon the apрlication of the statute of limitation, the defendant asserting that by its ‍​​‌‌‌​​‌‌‌​​‌​‌​‌‌​‌​​​‌​‌​‌​​‌​​​‌​​‌​​​‌‌​‌‌​​‍operation the clаim of the plaintiff has been barred. The contract involved reads as follows: *313in five years; thаt the additional promise of Nellie Rodgers to pay out of the proceeds of the beneficiary certificate any balance of the amount that might remain unpaid at the death of Peter Gillespie was collateral thereto — a guaranty of the carrying оut of their common agreement — a designation of the proceeds of the certificate as security for that obligation; and that the original claim having been barred by the statutе the collateral contract providing security, being a mere incident thereto, could not be enforced as an independent agreement. The obligation of Nellie Rodgеrs to pay Doctor King the amount owing to him did not originate or mature with the death of her brothеr or the receipt by her of the insurance money. Her liability arose upon the payment ‍​​‌‌‌​​‌‌‌​​‌​‌​‌‌​‌​​​‌​‌​‌​​‌​​​‌​​‌​​​‌‌​‌‌​​‍of the expenses by the doctor. The essence of her agreement with regard to thе insurance money was that it should stand as security for the obligation which had previously accrued — not that upon receiving it she would pay a sum maturing at that time, but that she would then apply a portion of it to the preexisting past-due debt. We regard the situation as entirely analogous to that presented where the statute of limitation has run against a note which is securеd by a mortgage. There is a difference of judicial opinion as to .the operation of the statute in such circumstances. Some courts hold that the mortgage may be enforсed notwithstanding the note has been barred. (17 R. C. L. 949; 25 Cyc. 1001.) The contrary rule, however, prevails in this state (Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118) as in many others (17 R. C. L. 950).

*312“This agreement, made this 20th day of August, 1912, between Dr. L. R. King, of the first part, and ‍​​‌‌‌​​‌‌‌​​‌​‌​‌‌​‌​​​‌​‌​‌​​‌​​​‌​​‌​​​‌‌​‌‌​​‍Peter Gillespie and Nellie Rоdgers, parties of the second part, all of Junction City, Kansas.
“Witnesseth, That party of the first part agrees to take said Peter Gillespie to the Christ Hospital in Topeka, Kansas, where he will be operated upon if it is deemed necessary by the surgeons in charge of sаid hospital, and that the hospital expenses and expenses of the surgical operation will be defrayed by said party of the first part; that in consideration of the payment of said expenses on the part of said party of the first part, ‍​​‌‌‌​​‌‌‌​​‌​‌​‌‌​‌​​​‌​‌​‌​​‌​​​‌​​‌​​​‌‌​‌‌​​‍second parties agree to pay to said party of the first part the sum of $350.00, which, in case of death to Peter Gillеspie before the payment of said $350.00, or any part thereof, to party of the first part, said Nellie Rodgers agrees to pay said sum or the balance due from the money which she shall receive from a policy from the sum of $2,000.00 in the Modern Woodmen of America, and in whiсh she is stated as the beneficiary.”
The petition alleges that the plaintiff paid the expenses referred to in the contract on September 1, 1912, and that the defendant has realized upon the beneficiary certificate described therein. This court is of the opinion that as soon as the plaintiff had paid the expenses referred to a right of actiоn in his favor accrued against Peter Gillespie and Nellie Rodgers upon their promise tо pay him $350; that such action was barred

*313Perhaps an even closer analogy is afforded by those cases in which an action upon an official bond on account of the misсonduct of the officer is held not to be maintainable after the two-year statute has рrotected him from a damage suit based simply upon his dereliction. (Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518.)

The present case involves no question as to the rights of a creditor with respect to property pledged as security which is in his possession when his claim becomes barred by the statute of limitation.

The judgment is reversed, and the cause is remanded with directions to sustain the demurrer to the petition.