Gorrill v. Goff

84 P.2d 953, 148 Kan. 765, 124 A.L.R. 223, 1938 Kan. LEXIS 265

• Court: Supreme Court of Kansas
• Decided: December 10, 1938
• Docket: No. 33,982
• Status: Published

Opinions

The opinion of the court was delivered by

Webell, J.:

This was an action on a promissory note. Judgment went for plaintiff, and the defendant has appealed.

Appellee urges the appeal should be dismissed. The court permitted oral arguments on the merits after appellant had amended his abstract to include specifications of error. It gave appellee additional time to file a counter abstract and brief. The latter has been filed. No motion for a new trial was filed by appellant, but the opinion will disclose facts showing no motion for a new trial was necessary. We shall therefore decide the case on its merits. .

The only issue involved is whether the action was hatred. That depends upon whether a certain credit placed upon the note by the owner and holder thereof, together with circumstances and facts to be hereafter narrated, tolled the statute of limitations. The note bore the date of March 1, 1928, and was due March 1, 1930. It contained certain credits which are not disputed. The credit entry endorsed by the holder of the note and here involved was the last one, which reads: “October 1, 1932, paid on int. and principal by credit of acct., $60.10.”

Defendant’s answer denied he had made such partial payment, alleged such credit was endorsed upon the note without his knowledge or consent, and denied the entry by plaintiff constituted a partial payment upon the note. The answer further asserted the claim was barred by the statute of limitations. Plaintiff filed a reply alleging facts designed to constitute ratification of the credit entry, and further alleged such facts constituted an estoppel to the defense pleaded.

A general verdict was rendered for the defendant. Special questions covering the issues of fact thus joined were submitted to the jury. The special verdict was as follows:

“1. Were the defendant, Melvin H. Goff, and one Max Wiedemann in partnership on or about October 1, 1932, and did they have an account, at that time, for $80.10 against the plaintiff, M. A. Gorrill, for repairs (parts) and labor upon his automobile? A. Yes.

“2. If you answered question No. 1 in the affirmative, was a statement of this account presented by Max Wiedemann on or about October 1, 1932, to Mr. Gorrill for payment? A. Yes.

“3. Was there on or shortly after October 1, 1932, an entry made on the partnership books of Wiedemann and Goff, of a charge to the defendant, Melvin H. Goff, of $60.10, for credit by plaintiff, Gorrill, on his note against Gofi? A. No.

“4. Did the defendant, Melvin H. Goff, know on October 1, 1932, or immediately thereafter that the bill of Wiedemann and Goff had been presented, and that the plaintiff had given credit on his note for the sum of $60.10 and paid $20 by check to the partnership of Wiedemann and Goff? A. Only by Wiedemann’s statement.

“5. Did the defendant, Melvin H. Goff, at any time or times go to the office of M. A. Gorrill and examine said note with the said credit of $60.10 endorsed thereon and ascertain the balance due on said note after the application of said credit and state to the said M. A. Gorrill that, ‘I guess it is all right’? A. No evidence that note was examined by Goff.

“6. Did the defendant, Melvin H. Goff, at any time or in any of the conversations had between him and the said plaintiff, M. A. Gorrill, raise any objection or make any protest against the endorsement of said credit upon said note? A.No.

“7. Did the said M. A. Gorrill, at any time prior to the filing of this action, have any knowledge or notice communicated to him, by word or action, of the said Melvin H. Goff, that the said Melvin H. Goff did not acquiesce in or approve of the making of said credit on said note? A. No.

“8. Was the conduct of the said Melvin H. Goff from October 1, 1932, up to the time of filing this suit, such as to cause any ordinary person to believe that he acquiesced in and approved the application of said credit upon said note? A. No.

“9. Did Goff know of the fact that Gorrill had placed a credit of $60.10 on the note? A. Only by Wiedemann’s statement.

“10. If you answer question No. 9 ‘yes,’ then did Goff later ratify such credit by word or act? A. No.

“11. If you answer question No. 10 ‘yes,’ then state what Goff did to ratify such credit. A.-.” (Italics inserted.)

Appellee filed a motion to set aside the general verdict and for judgment in his favor upon the special verdict. He also filed a motion for a new trial. The former motion was sustained and the latter motion overruled. In order that the reader may have a clear understanding of exactly what the pertinent portion of the journal entry contained, we quote the following:

“And the court, after considering all of the evidence and being fully advised in the premises, finds that the motion of the plaintiff to set aside the general verdict in this cause, heretofore rendered by the jury, and to render judgment for the plaintiff upon the special verdict heretofore rendered by the jury should be sustained and that the plaintiff is entitled upon the evidence and said special verdict to a judgment as prayed for and that the motion of the plaintiff for a new trial should be overruled.

“It is, therefore, ordered, adjudged and decreed by the court that the general verdict heretofore rendered by the jury in this cause be and the same is hereby set aside and held for naught, and that upon the special verdict the plaintiff have and recover a judgment against the defendant, . . .”

Appellant’s first specification of error is, the trial court erred in rendered judgment for the plaintiff (appellee) upon the record. The second specification of error is, the trial court erred in overruling the defendant’s (appellant’s) motion for judgment upon the special questions and general verdict. The journal entry does not recite the latter motion. It may have been made orally. The record does not disclose. That such motion was made, appellee does not deny, its brief being silent in that regard.

We shall now discuss the first specifications of error, namely, that the trial court erred in rendering judgment for the plaintiff upon the record. The fact-finding portion of the journal entry is confusing in this regard. It will be observed it first finds plaintiff’s motion to set aside the general verdict and to render judgment for plaintiff upon the special verdict should be sustained. It then follows with the statement, “The plaintiff is entitled upon the evidence and said special verdict to a judgment as prayed for.” (Italics inserted.) In the judgment portion of the journal entry, the general verdict is set aside and judgment is rendered in favor of the plaintiff upon the special verdict alone.

It is appellant’s contention that in view of the fact the special verdict expressly covered the pertinent issues of fact, the general verdict must stand unless the special verdict compels it to fall. He urges the special verdict does not have that effect and that it is in harmony with the general verdict. He contends specific issues of fact were clearly joined by the pleadings and that it was the province of the jury to determine those facts. He urges the jury did determine each of the salient facts relative to both the original right of the plaintiff to credit the payment on the note and whether defendant subsequently ratified such payment. He insists those questions of fact, and especially the question of ratification of the credit, which is the real issue, were definitely submitted to the jury, under instructions not complained of, and were determined in his favor upon a sharp conflict of evidence. He therefore insists he is entitled to judgment on both the special and the general verdicts.

Let us turn to the special verdict. The majority of the court are of the opinion the general verdict was properly set aside for the reason tlie special verdict discloses defendant’s ratification of the credit endorsement. The following are the views of the majority, as the writer understands them, relative to the effect of the special findings.

The answers to questions numbers four and nine are each tantamount to the answer "yes.”' The answers actually made pertain to the method by which defendant discovered that plaintiff had endorsed the credit, and carry with them affirmative answers to those questions. Answer number five is interpreted as an affirmative answer to all parts of question number five, except the portion of that question which pertains to the examination of the note by the defendant after the credit had been endorsed thereon. In other words, it is the opinion of the court that answer number five, combined with the real answers, namely, the answers “yes,” to questions numbers four and nine, means that the defendant knew plaintiff had made the endorsement of the Credit and ratified it. Answers numbers six and seven indicate the defendant made no objection or protest to the credit, and that plaintiff at no time prior to-the suit had any knowledge or notice communicated to him by the defendant that he did not acquiesce in or approve the credit endorsement. Finding number eight is somewhat in the nature of a conclusion and should not be construed as vitiating the effect of the other findings. Finding number ten is inconsistent with the interpretation previously given to finding number five and other pertinent findings. The court, therefore, holds the special verdict discloses ratification of the credit endorsement. G. S. 1935, 60-312, provides:

“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability,, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period 'prescribed for the same,, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”

From this statute it is apparent three things may toll the statute of limitations. One is a payment. The others are acknowledgment of the debt in writing or a promise in writing to pay the debt, each signed by the party to be charged thereby. A payment obviously may be made otherwise than in writing. A payment, like any other act, may be ratified. The court having interpreted the special verdict as disclosing an express ratification by the defendant, no treatment of the subject of an implied ratification is necessary. Appellant relies upon the following cases: Good v. Ehrlich, 67 Kan. 94, 72 Pac. 545; Shanks v. Louthan, 79 Kan. 363, 99 Pac. 613; Elmore v. Fanning, 85 Kan. 501, 117 Pac. 1019; Wichita Sanitarium v. Bierschbach, 136 Kan. 84, 12 P. 2d 806; Pessemier v. Zeller, 144 Kan. 726, 62 P. 2d 882; First Nat’l Bank v. Signs, 146 Kan. 801, 73 P. 2d 1109. A careful analysis of these cases will disclose they pertain to the question of original authority to make the credit endorsement, or to cases where the debtor had knowledge of the credit endorsement, and did not expressly ratify the endorsement, but simply failed to object to or make protest against such endorsement, and to cases which pertain to the provisions of G. S. 1935, 60-312, which relate to the acknowledgment of the debt or a promise to pay the debt.

In view of the court’s interpretation of the special verdict all that need be determined in the instant case is that a payment may be approved by an express oral ratification. In other words, the court holds that ratification of a payment is.not that kind of acknowledgment of the debt which, under G. S. 1935, 60-312, must be in writing.

Appellant stresses statements from cases such as the statement contained in Elmore v. Fanning, which was:

“A payment, to toll the statute, must be made under such circumstances as to amount to an acknowledgment of an existing liability. (Shanks v. Louthan, 79 Kan. 363, 99 Pac. 613.)” (p. 504.)

That is a correct statement of the law. When, however, a credit endorsement on a note, not originally authorized to be made by the maker, is nevertheless ratified by the maker, it becomes as binding on him as though he had made'the original payment under circumstances amounting to an acknowledgment of the debt. The reason payment tolls the statute is that payment is an acknowledgment of an existing debt and an implied promise to pay the remainder. (Good v. Ehrlich, supra; Pessemier v. Zeller, supra, p. 729.) In most jurisdictions payment is regarded as the best of all acknowledgments. (37 C. J. 1142.) Under G. S. 1935, 60-312, the particular form of acknowledgment, known as payment, is not required to be in writing. The reason is obvious. Payment is an executed acknowledgment and speaks for itself. It requires no writing to establish it.

Appellee directs our attention to the fact defendant permitted the automobile repair account to outlaw without presenting it to plaintiff for payment. He urges that fact showed ratification of the credit endorsement on the note. Such fact did not constitute ratification as a matter of law. Defendant testified and the jury found that the credit of $60.10 was not charged against the defendant on the partnership books. Defendant testified in substance that when the partnership settlement was made it was made without reference to outstanding accounts. Under these circumstances we cannot say, nor could the trial court have said, plaintiff’s account with the partnership became the personal property of the defendant so as to permit defendant to enforce it, in his individual capacity, against the plaintiff. The fact it was not presented to plaintiff for payment was, however, a proper circumstance for the consideration of the jury on the question of ratification, under proper instructions. Appellee does not contend the instructions did not touch that feature of the case, or that the instructions for any reason were inadequate to cover it. The effect of defendant’s failure to present that account is therefore merged in the special findings on the subject of ratification, and also in the general verdict. Appellee does not contend the special findings did not cover the entire record. In fact, he moved for judgment on them alone, and this court is approving the judgment on the strength of those findings. It follows the judgment must be affirmed. It is so ordered.