Coleman v. Ward

55 N.W. 695, 85 Wis. 328, 1893 Wisc. LEXIS 284

• Court: Wisconsin Supreme Court
• Decided: May 23, 1893
• Status: Published

Opinion

PiNNEY, J.

The statute is that “ if there are two or more joint contractors ... no one of them shall lose the benefit of the provisions of the statute of limitations, so as to be chargeable, by reason only of any payment made by any other or others of them.” R. S. sec. 4218. This action was certainly barred unless taken out of the statute by the payment of $79.35, May 2, 1885, and it was made by and at the direction or request of the defendant Ward. The fact that the payment was made by Barrette of his own volition and without the request or direction of Ward, is made of no avail by the statute. It seems that if a joint debtor, on being called on for payment, refers the person calling on him to his codebtor for payment, this amounts to a direction to the latter to make payment for him, and if he does so the payment will be held to continue the debt from that date as to both. Cleveland v. Harrison, 15 Wis. 670; National Bank v. Cotton, 53 Wis. 31. The plaintiff’s evidence does not tend to show that the particular payment relied on was made at the request or direction of the defendant Ward. The plaintiff, in his testimony, is unable to say whether the conversation between him and Ward relied on took place before or after the payment in Question was made. He says that the conversation occurred after Barfette had left the state, and his testimony tends to show that the last indorsement was on the note when the interview took place between the plaintiff, Barrette, and defendant, in Prairie du Chien, when Barrette was going away. The evidence was not sufficient to take the case to the jury on this question, and the direction of a verdict for the defendant was correct.

By the Gourt.— The judgment of the circuit court is affirmed.