This аction was brought in February, 1897, by the legatees under the will of Peter Wolford, deceased, to recover a balance claimed to be due on a promissory note dated March 9, 1889, and payable seven months after date. It is conceded that the note was barred by the statute of limitations, unless the running of the statute had been interrupted by partial payments. The plaintiffs rely upon two alleged payments as having that effect. These we will considеr separately.
The principle upon which part payment of a debt will take a case out of the statute is that such payment amounts to an acknowledgment of the existence of the debt, from which the law implies a new promise to pay the balance. To have that effect, the payment must be voluntarily made by the debtor in person who is sought to be charged with the effect of it, or by some one authorized by him to make a new promise on his behalf. It has been hеld, or at least intimated, in some cases, that a sale of collaterals made within a reasonable time after they are deposited with the creditor, and the application of the proceeds on the debt, will operate as a part payment at the date of the receipt of such proceeds, so as to interrupt
Wolford’s right to receive the proceeds of the collateral mortgages, and apply them in part payment of defendant’s note, was acquired under and by virtue of the contract made at the time thе collaterals were transferred to him. His subsequent exercise of that right was not a voluntary payment made by the defendant from which a promise to рay the residue can be inferred. The defendant had done nothing since he transferred the collaterals to Wolford in March, 1889. The fact that he madе no objection when informed by Wolford that he had applied the proceeds of these collaterals on his note could not take the сase out of the statute. He had no reason to object, and, if he had done so, it would have been futile. Wolford had merely exercised a cоntract right which he acquired in 1889. Defendant’s passive acquiescence in the exercise of that right constituted neither a voluntary payment as of that date, nor a new promise in writing to pay the balance of the debt. Harper v. Fairley,
Some of the cases may be misleading for the refison that thеy seem to lay some stress on the fact that the debtor never knew of, and consequently never assented to, the application by the creditor of the proceeds of the collaterals. If the debtor had any option in the matter, or any power to object effectively to the application, there would be some force in the suggestion that his assent to it amounted to a voluntary payment by him as of that date. But this cannot be sо where the creditor is merely exercising an absolute legal right under the original contract.
The evidence bearing on this branch of the case is very indefinite and unsatisfactory, and very little attention is paid to it in the briefs of counsel. There is evidence tending to show that Wolford and the plaintiffs claimed the right to collect the rents and apply the proceeds on the note by virtue of some agreement between them and the defendant, made contemporaneously with the execution of the mortgage. If so, the agreement was not enforceable. Cullen v. Minnesota,
Hence, if the defendant voluntarily, and in the absence of any circumstances tending to'rebut the inference of an implied promise to pay the whole debt, turned over the rents and profits of the mortgaged premises to Wolford and the plaintiffs, to be by them applied, when collected, on the note in suit, this would, in law, amount to such a part payment as would interrupt the statute. As аlready suggested, circumstances might rebut the inference of any implied promise to pay the balance of the debt, as, for example, if the defendant was merely submitting to the exercise by Wolford and the plaintiffs of an enforceable legal right acquired under a prior contract, or if Wolfоrd and the plaintiffs were asserting and
Order reversed.