133 P. 121 | Idaho | 1913
Lead Opinion
This is an action upon an implied contract for the recovery of the sum of $722.65 and interest. The complaint alleges that on the 26th day of August, 1906, the plaintiff, G. W. Tritthart, and Charles F. Tritthart, deceased, delivered 'to the First National Bank of Centralia, Indian Territory, their joint and several promissory note for the sum of $788.45, dated August 26, 1906; that the plaintiff received no consideration for the note, but signed the same
The defendant, as administratrix, filed an . answer and denied all the allegations of the complaint, except the death of the deceased, her appointment as administratrix and the presentation of the claim as alleged in the complaint. Upon these issues a jury was called and the evidence taken, and upon the conclusion of the plaintiff’s .evidence the respondent. made a motion for a nonsuit upon the ground that plaintiff had failed to sustain the material allegations of the complaint, and the jury was dismissed and judgment ordered for the defendant. This appeal is from that judgment.
It seems from the allegations of the complaint, and also the brief of counsel for appellant, that the appellant considered the action as an action upon a written contract. The answer of the respondent also indicates that the defendant considered the action to be an action upon a written contract, for in the answer the defendant has plead as a defense the statute' of limitations, sec. 4052, Rev. Codes. This section prescribes the period within which actions other than for the recovery of real property shall be commenced: “Within five years: An action upon any contract, obligation, or liability founded upon an instrument in writing.”
This allegation, however, was not amended in the lower court, and the appellant does not contend in his brief, and did not upon oral argument contend, that a mistake was not made by the designation of sec. 4052 instead of sec. 4053.
We are of the opinion that respondent cannot urge this question in this court, because the same was not presented to the trial court. From the record it appears that the action is not barred by the statute of limitations, if the action is upon a written instrument; upon the other hand, if the action is upon an implied contract, the action is barred by sec. 4053. This question, however, was not raised in the lower court, and cannot be raised upon this appeal. The respondent is bound by the answer.
As to the character of the action, we think there can be no question. In paragraph 2 of the complaint it is alleged that the plaintiff received no consideration for the note, and it is alleged that he signed the same as an 'accommodation for the said C. F. Tritthart, at his request and upon his promise to pay the note at maturity. The rule of law under such facts is generally recognized to be, that a surety who pays a note may sue the maker at law upon an implied promise to indemnify him, or in equity upon the note, as being subrogated to the rights of the payee. The allegations of the complaint above quoted are not denied in the answer, and the allegations show that the plaintiff’s obligation upon the note was that of suretyship. The right of action, therefore, was the right of action of a surety to recover reimbursement from his principal, which accrues when the surety pays the debt, and the obligation of the principal to repay the surety is not founded upon a written instrument within the meaning of
We think, therefore, that there can be no question in this ease but that the action is upon an implied promise, and not upon a written instrument. The note may be received in evidence for what it shows, but the right of recovery is not-upon the note.
The evidence consists entirely of the introduction of the promissory note and parts of a deposition. The note reads as follows:
“$788.45. Centralia, Ind. Ter., Aug. 26, 1906.
‘ ‘ 6 months after "date we promise to pay to the order of First National Bank of Centralia, I. T.
Seven Hundred Eighty eight 45/100..............Dollars for value received, payable at the office of BANK OF CENTRALIA, Ind. Ter., with interest thereon at the rate of 8 per cent, per annum from maty, until paid, payable annually, and if the interest be not paid when due, the same shall become a part of the principal and bear the same rate of interest. We, the makers, sureties, guarantors and endorsers, severally waive presentment for payment, protest and notice of protest, and non-payment of this note, and consent that time of payment may be extended without notice thereof.
“P. O. Coadys Bluff, I. T.
“Due 2 — 26—1907. (Signed) C. F. TRITTHART.
“No. 1256. G-. W. TRITTHART”
The indorsements upon the note are as follows:
“June 13, 1907........................Int. to Rate 10.50
Prin. 788.45
“Paid by G. W. Tritthart. • 798.95
“By cash, 150.00, January 9, 1909. By cash 150.00, Feb. 10, 1910.”
Counsel for appellant relies solely upon the ruling of the trial court in granting a nonsuit, and contends that the introduction of the note itself was sufficient to prove the cause of action alleged in the complaint, and that the note itself is sufficient under the issues to show due execution and that plaintiff paid the note, and in the absence of evidence of nonpayment, was sufficient to require the court to submit the question of payment to the jury, and that it was error of the trial court to sustain a motion of nonsuit. To sustain this position our attention is called to two eases: Sheffield v. Cleland, 19 Ida. 612, 115 Pac. 20, and Light v. Stevens, 159 Cal. 288, 113 Pac. 659. The case of Sheffield v. Cleland was a case where a promissory note was executed by MeBee to Cleland, and Cleland, after maturity, indorsed said promissory note and assigned the same to Sheffield. Sheffield brought the action against Cleland, the indorser. In that case this court held that the introduction in evidence of the note was prima facie evidence that the debt evidenced thereby was unpaid.
In the case of Light v. Stevens, supra, the supreme court of California, in a case very similar to the one now considered, with the exception that the court in that case seemed to rely principally upon the provisions of sees. 1961 and 1963 of the* Civil Code of California, held: “Defendant’s contention in regard to the counterclaim is fully answered by the presumption declared by subd. 7 of sec. 1963, Code of Civil Procedure, viz.: ‘ That the money paid by one to another was due to the latter.’ There is absolutely nothing in the evidence to contradict this presumption, and, ‘unless so controverted, the jury are bound to find according to the presumption.’ Sec. 1961, Code Civ. Proe.”
“Admittedly, the burden of proving the payment of the note was on the defendant. It is elementary that the possession of the note by the payee, bearing no indorsement of payment, raises a presumption of nonpayment of any portion of the amount thereof.” The court then refers to sec. 1963 of the Code of California, and observes: “And the converse of this, viz., that possession by the payee is prima facie evidence of thé nonpayment, is universally held.”
The court then discusses the facts in that case and the presumption arising from the note itself, and upon whom the burden of proof rests, and says: “It is the ordinary course of business on the part of reasonably careful persons to require the delivery of their written obligations upon discharge thereof, or if this cannot be obtained, to require some written evidence of the discharge, and it would be quite a departure from ‘the ordinary course of business,’ which is presumed to have been followed (Code Civ. Proc., sec. 1963, subd. 20), to pay the full amount due on a note without receiving the note from the payee, or, if it cannot be delivered, some other evidence of payment. The burden of proving payment resting on the defendant, he must introduce evidence which warrants the conclusion of not only the mere delivery of money to the creditor, but the conclusion of the delivery of the money on account of the particular obligation in suit, for this is involved in the term ‘payment’ when applied to- any particular obligation. This much seems very clear, and is
There is indorsed upon the back of the note the following: “Jan. 13, 1907. Int. 10.50. Prin. 788.45,” making a total of “798.95, paid by G. W. Tritthart.” This writing appears to have all been done by the same scrivener. Who this scrivener was does not appear from the evidence. It may have been G. W. Tritthart, the plaintiff, or it may have been the cashier of the bank; but whoever the scrivener was, the indorsement clearly shows that G. W. Tritthart paid the note and paid the sum of $798.95. This, in our opinion, under the authorities cited above, supports the findings of the trial court, and establishes a prima facie case of payment on the part of G. W. Tritthart, and his being in possession of the note was sufficient, and the trial court erred in taking the case from the jury. Upon this evidence the question was not one of law, but of fact, and the question of fact was one for the jury, and n'ot the trial court.
It will be observed from this opinion that this court has passed only upon the questions that were involved in the motion for a nonsuit, which have been indicated in the opinion.. The other errors assigned in the brief of counsel for appellant are errors not included in the motion for a nonsuit.
For these reasons the judgment is reversed and a new trial granted. Costs awarded to appellant.
Dissenting Opinion
Dissenting. — I am able to concur in the conclusion reached by the majority of the court. This is an action against an administratrix of the estate of a deceased person, and under subd. 3 of see. 5957, Rev. Codes, the plaintiff could not testify in this case as to any matter of fact occurring before the death of the deceased person mentioned in the complaint. All of the material allegations of the complaint were put in issue by the denials in the answer. On the trial the deposition of one Montgomery, or a part of it, was introduced in evidence, and it appears from the evidence in that deposition that said promissory note, which appears to be a joint note on its face, was signed by G. W. Tritthart as surety and C. F. Tritthart as principal, and that C. F. Tritthart failed to pay the same when it became due and that G. W. Tritthart paid it on June 13, 1907. The promissory note was then introduced in evidence with certain indorsements thereon. The evidence does not show by whom said indorsements were made, and plaintiff rested. Thereupon counsel for respondent moved that the court instruct the jury to bring in a verdict in favor of the defendant on several grounds, which motion was granted by the court, or the case was taken from the jury.
The trial court in rendering its decision said: “I find evidence in the deposition that G. W. Tritthart signed the note as surety, and it was paid by G. W. Tritthart. I don’t find evidence in the deposition or the case that C. F. Tritthart has not repaid the note to G. "W. Tritthart and that it is now due and owing to G. W. Tritthart. ’ ’ Counsel for appellant thereupon stated, “There is no evidence except the note itself, which shows on the face of it, on account of Tritthart not being permitted to testify.” The Court: “There is where the mind of counsel and court do not join — -that the note is sufficient. I shall grant, the motion for nonsuit. ’ ’
Conceding that the appellant paid said promissory note on the 13th of June, 1907, there is not a particle of evidence showing or tending to show that the deceased did not furnish the money to pay said indebtedness or that he had not repaid
And again: It is alleged in the complaint that the appellant’s claim in this action was presented to the administratrix for allowance and that she rejected the same. A copy of said claim was attached to the complaint and in part is as follows:
“Estate of Charles F. Tritthart, Deceased.
“To G. W. Tritthart, Dr.
“1912.
“Jan. 6. Balance due on note, with interest to date, $722.63”
The third paragraph of the answer is, in part, as follows: “As to whether or not the said C. F. Tritthart did not pay said note at maturity and that plaintiff was thereupon compelled to and did, on the 13th day of June, 1907, pay the sum of $798.95 in discharge of the said note, and that no part of said sum has been paid to plaintiff .... or whether or not there is any sum due as alleged in said paragraph 3 of plaintiff’s complaint, this defendant has no knowledge sufficient upon which to base a belief and therefore denies the
My associates lay stress upon the fact that said promissory note was in the possession of the plaintiff, but I am unable to see why they should do so, as it was a joint note, and G. W. Tritthart was one of the makers and had a right to the possession of it if he had paid it. Nevertheless it was obligatory upon him by competent evidence to show that he was only surety on the note,.also that he had paid it and what was the balance due and unpaid. The note itself does not show the balance due and unpaid. ,
It is stated in the majority opinion that the respondent denied certain allegations of the complaint but that she introduced no evidence in support of her denial. She did not need to do so until there was some evidence introduced to sustain the allegations so denied.
But as I view it, the main objection to the rule laid down by the majority is that an indorsement upon a promissory note may be introduced to establish a fact in a .person’s favor wherein he is not permitted to testify in regard to such fact. There is not a particle of evidence to show the balance due the plaintiff. The judgment ought to be affirmed.