This is an action by Watkins Products, Incorporated, to recover from George Oren Rains, as principal, and Ingve A. Mattson, George L. Gifford, and Mrs. G. L. Gifford, as sureties, а balance of $1,350.47 with interest at 6 percent per annum from September 6, 1956. The defendants filed a motion for judgment on the pleadings. The motion was sustained аs to the sureties and overruled as to the principal. The plaintiff has aрpealed.
The record shows that on March 27, 1956, plaintiff entered into a writtеn contract with the defendant Rains for the sale of merchandise to Rains. On thе same written instrument the three sureties promised, agreed, and guaranteed to pay for the merchandise and the prepaid transportation charges thereon in the manner provided *59 by the contract between plaintiff аnd Rains. The petition alleges that between April 1, 1956, and August 24J 1956, plaintiff sold merchandisе to the defendant upon his order and pursuant to the terms of the agreement in the amount of $1,865.93. Credits were allowed by the plaintiff in the amount of $515.46, leaving $1,350.47 due аnd unpaid. The account attached to the petition shows that the last сredit was by the return of merchandise in accordance with the contract on November 27, 1956. It is the contention of the sureties that the petition shows that more than 5 years have elapsed between the date on which the cause of action accrued and the date on which the action was brоught, and that the claim against the sureties was barred by the statute of limitations. § 25-205, R. R. S. 1943.
This action was commenced on September 28, 1961, more than 5 years after the liаbility of the sureties was incurred. The action against the sureties is barred unless there was a tolling of the statute. Plaintiff contends that a return of merchandise in the аmount of $105.73 on November 27, 1956, had that effect. The petition shows that Rains returned this merchandise to plaintiff, who advised the sureties that it had been credited on Rains’ account. There is nothing to indicate that the sureties consented to thе return of this merchandise for credit and they invoke the rule that payments madе without the authority or consent of a surety or joint obligor do not toll the statute of limitations as to such surety or joint obligor. In re Estate of Soukup,
In order for а part payment to operate to toll the statute of limitations as tо a surety the payment must have been made by the surety in person, or for him by his authority, or for him without authority and subsequently ratified by him. The mere fact that the surety has knowlеdge of partial payments being made by the *60 principal is not sufficient to toll the statute as to the surety.
Where a petition alleges the sale of mеrchandise to a principal debtor with a written contract of suretyship signed by the sureties, and it appears on the face of the petition that thе suit was commenced after the running of the statute of limitations, the cause of action is barred as to the sureties in the absence of an allegation showing that the statute has been tolled as to them. W. T. Rawleigh Co. v. Smith, supra.
A
motion for a judgment on the pleadings is in the nature of a demurrer. Like a demurrer, it admits the truth of all wеll-pleaded facts in the pleadings of the opposing party, together with all reasonable inferences to be drawn therefrom. Brown v. Royal Highlanders,
Affirmed.