168 P. 614 | Or. | 1917
Opinion by
“We think any person who could be compelled by law to pay the note is competent to make the payment contemplated”
—meaning thereby a payment sufficient to toll the statute of limitations. In the case at bar the administrator could not have been compelled to pay the note. A complaint against him and this defendant would have been promptly dismissed on demurrer so far as the administrator was concerned. The payment made by him was incompetent to revive the debt against the estate, and much less so to toll the statute as to defendant. In re Colket’s Estate, 217 Pa. St. 643 (66 Atl. 980), is cited by plaintiff as sustaining the propo-sition that the administrator of a deceased joint obligor can be eventually made to pay the share of the decedent’s joint obligation; but that case turned, not upon the relation of the deceased to the payee of the joint promissory notes, but upon a contract or understanding between him and his co-obligee that as between themselves they would bear the burden of payment equally, the notes having been given for the mutual benefit of both. The question of the revival of a dead obligation was not involved. The case of Sheak v. Wilbur, 48 Or. 376 (86 Pac. 375, 11 Ann. Cas. 58), is not in point, for the reason that the promissory note in suit was not a joint note, but a joint and
We, therefore, conclude that the question of the efficacy of such an indorsement to keep alive the remedy as against the surviving joint maker is still res integra in this state, and that for the reasons already given it should be resolved against the contention of plaintiff. To hold otherwise would be, in effect, to say that a payment which did not revive the debt as against the party making it would be effectual to bind the comaker of the note.
The judgment of the Circuit Court is reversed, the demurrer will be sustained, and the action dismissed.
Reversed and Dismissed.