53 Wis. 31 | Wis. | 1881
The findings of fact by the circuit court upon which the judgment was rendered for the defendant in this cause are, substantially, that no payment was made upon the note in suit after the 6th day of January, 1873, by Patrick Gorm-ley, before his death on the 9th day of January, 1879, or by any one authorized thereto in his behalf; that the debt mentioned did not accrue within six years next prior to his death; and that Patrick Gormley did not undertake or promise to pay said debt within said six years. The conclusion of law was, of course, that the cause of-action was barred by the statute of limitations. The only question which need be determined on this appeal is one of fact — whether Patrick Gormley, in his life-time, made any payment upon said note after the 6th day of January, 1873, or by any one authorized thereto in his behalf. Being of the opinion that the finding of the circuit court upon this question was clearly erroneous, other exceptions in the record need not be considered.
Patrick Gormley and one A. II. Barnes were jointly liable to pay this note, together with other indebtedness, to the plaintiff, of the firm of S. Atwater & Co., which they had assumed on the dissolution of said firm. D. B. Barnes testified that A. II. Barnes and Patrick Gormley told him that they had made an arrangement and agreement whereby A. II. Barnes was to pay $600 on this note, and Patrick Gormley was to pay a like sum to one George Cotton, for which they were also' jointly liable to the plaintiff, and then testified positively and of his own knowledge that A. H. Barnes paid, of the $600 to be paid on this note by said agreement, the sum of $585 on the 11th day of September, 1875, and that he in
The testimony of D. B. Barnes appears to us to be conclusive that this $585 was paid on the lltli day of September, 1875. The testimony is equally clear as to the manner in which this payment was made. It was by an arrangement and agreement between A. II. Barnes and Patrick Gormley, and by the request and direction, and with the consent and acquiescence, of Gormley. These are unquestionably the facts of the case, and the finding of the circuit court on this question of. fact is clearly against the evidence.
In Winchell v. Hicks, 18 N. Y., 558, where sureties on a joint and several note were called upon for payment, and they directed the holder to call upon the principal for payment, and the principal made a payment on the note, it was held such an acknowledgment of liability as to arrest the running of the statute against them. In Huntington v. Ballou, 2 Lansing, 120, where the maker made payment of interest on the note, reciting in the receipt that it was made by an accommodation indorser, by the hand of the maker, and the indorser, when afterwards shown the receipt by the holder, examined it and expressed his approval of it, it was held that the payment took the case out of the statute as to such indorser. It is said in the opinion that “ the holder had the right thereafter to suppose that the payment made by the maker was so made with the full understanding and arrangement that it.should be so made for the indorser.” This holding was approved, and the judgment affirmed, in First Nat. Banh of Utica v. Ballou, 49 N. Y., 155; and in this case it was also held that the requirement of the statute that an acknowledgment or promise to take a case out of the operation of the statute must be in writing, does not alter the effect of" a ¡payment of principal
By the Court.— The j udgment of the circuit court is reversed, and the cause remanded with directions to that court to render judgment for the plaintiff for the amount of .the note in suit, less the payments made thereon..