McCOY, P. J.
On November 26, 1909, plaintiff commenced this suit against defendant to recover a balance of $1,124.32 claimed to be due upon an account consisting of numerous items of both debit and credit. As shown by the bill of particulars, the debit charges against defendant commenced April 23, 1901, and ended April 26, 1904; the last item being $97.50 cash claimed to have been advanced by plaintiff for defendant on that date. All the debit items charged against defendant accrued more than six years before -the commencement of the action, with the exception of the last item of $97.50. The items charged against defendant amounted in the whole to $4,119.51. The credit items in favor of defendant amount in the whole to $2,995.19, thus leaving an apparent balance of $1,124.32 in favor of plaintiff. All the credit items accrued more than six years before the commencement of the suit, excepting the last five, which are as follows: March 25, 1904, note $1,000; same date, check for $32.79; saíne date, currency $10; March 30, 1904, check, $16.15; same date, check, $38.63. So far as affects the question presented on this appeal, defendant by way of answer interposed the following defenses: (1) The 'statute of limitations against the entire account; (2) alleged that the $1,000 note of March 25, 1904, was given by defendant and accepted by plaintiff in full settlement and satisfaction of the entire account; (3) pleaded that the item of $97.50 was paid by the last four items on the credit side, that said last' four [543]*543items on the credit side were paid by defendant and accepted by plaintiff as payment and satisfaction of the said last item of $97-5° on the debit side. On the trial plaintiff offered testimony tending to show that the $i,ooo note was given only as a part payment to be applied on the balance then unpaid on said account, and the record shows that thereafter the 'said note -was paid in full by defendant. Defendant also offered testimony tending to show that the item of $97.50 was paid and satisfied by the last four items on the credit side of the account and was so- understood and intended, and that said debit charge of $97.50 and 'said last four credit items never were in reality any part' of the said account. The jury found a general verdict in favor of plaintiff for $1,026.82; this being the balance of the account as claimed by plaintiff less the item of $97.50. The court also submitted to the jury special interrogatories or findings to be answered by the jury in addition to the general verdict. One interrogatory was as follows: “Was the thousand dollar note of March 25, 1904, given by Mr. Hánskutt and received by McCarthy Bros. Co. in full settlement and payment of all items in this bill of particulars of date prior thereto?” Which interrogatory the jury answered, “No.” Another interrogatory was as follows: “Did the plaintiff advance for defendant this last item of $97.50, in the hill of particulars of April 26, 1904?” Which interrogatory the jury answered, “No.” These are the only interrogatories material to the questions on this appeal. Thereafter the defendant moved the court for judgment against plaintiff, dismissing plaintiff’s action notwithstanding the general verdict; said motion being based upon the pleadngs, plaintiff’s bill of particulars, all the files and records in the cause, the evidence taken therein, and the special findings of the jury in answer to the interrogatories submitted. Upon the hearing of said motion the court rendered judgment and made order reciting: “And the court having considered the pleadings, bill of particulars, evidence, and verdict's, and finding as a matter of law that all right of action of plaintiff, if any, was barred by limitations prior to the commencement of this action, said motion of defendant is hereby sustained. It is therefore ordered and adjudged that plaintiff’s action be, and the same hereby is, dismissed upon its [544]*544merits.” To this ruling and action of the court the appellant excepted and now assigns the same as error. We are of the opinion that appellant is right in its contention, and that the court erred in dismissing plaintiff’s cause of action, and that the court should have rendered' judgment in favor of plaintiff in accordance with the general verdict. There is no inconsistency between the. general .verd.ict and the special findings above referred to. By deducting the amount of $97.50 from the balance of $1,124.32 claimed by plaintiff, the jury in effect found that plaintiff had not advanced said item, the same as found by the special verdict. By the general verdict the jury also found in effect that the $1,000 note was given as a partial or part payment of the account, and to1 the same effect as found .by the special verdict.
[x] The only theory upon which the finding of the court can ■stand is that the giving of the said note did not toll or suspend the operation of the statute of limitations. If the note was not in the case at all, then the ruling and judgment of the court were correct. But the finding of the jury was that this note was given and accepted as a partial payment on said account, and the record shows that before the beginning of this action the said note was by defendant paid in full. We are of the opinion that the giving of this note and the payment of the 'same had the effect of tolling and staying the statute of limitations as to the whole account. It is not necessary that a payment, in order to toll the statute, should be made in money. Anything of value may be given by the debtor and accepted in payment by the creditor and will be sufficient, provided, however, it is accepted as part payment only and not full payment. The note of the debtor is sufficient. 25 Cyc. 1379; Pacht v. McNee, 40 Kan. 1, 18 Pac. 925.; Adams v. Tucker, 6 Colo. App. 393, 40 Pac. 783; Block v. Dorman, 51 Mo. 31.
[2] “A part payment, to be effectual to interrupt the statute, must be voluntary and free from any uncertainty as to "the identification of the debt on which it was made. It must also -be made as a part of a larger debt, and be so accepted by the creditor, and made under such circumstances as are consistent with an intent to pay the balance, which intent must be determined by the jury. [545]*545The burden of proof is on the creditor to show such intent, and the language used at the time of the payment is admissible to show the intent with which it is made.” 25 Cyc. 1371; Gaffney v. Mentele, 23 S. D. 38, 119 N. W. 1030.
[3] In Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320, under a statute in effect the same as section 79, Code Civ. Pr., providing that no acknowledgment or promise shall be evidence of a new contract to‘ take a promise out of the statute of limitations unless in writing, but nothing in it shall alter or take away the effect of a part payment, the court held that such statute does not exclude a-11 parol evidence bearing upon the new promise by way of part payment, that the intent with which the part payment is made may be determined from surrounding circumstances and by statements of the parties made at the time.
[4] J. H. McCarthy, president of plaintiff, testified, in 'substance: We had been pressing defendant for some time to pay ■his account. He wrote us he was coming up and would fix un>. We expected to have him settle in full by giving a note for part and cash for the balance. When he arrived, he only wanted to give a note in settlement. We insisted on him paying cash. He said he -was unable to do so at that time, as collections were slow. Finally he said: “I will give you a note for $1,000.
Free access — add to your briefcase to read the full text and ask questions with AI
McCOY, P. J.
On November 26, 1909, plaintiff commenced this suit against defendant to recover a balance of $1,124.32 claimed to be due upon an account consisting of numerous items of both debit and credit. As shown by the bill of particulars, the debit charges against defendant commenced April 23, 1901, and ended April 26, 1904; the last item being $97.50 cash claimed to have been advanced by plaintiff for defendant on that date. All the debit items charged against defendant accrued more than six years before -the commencement of the action, with the exception of the last item of $97.50. The items charged against defendant amounted in the whole to $4,119.51. The credit items in favor of defendant amount in the whole to $2,995.19, thus leaving an apparent balance of $1,124.32 in favor of plaintiff. All the credit items accrued more than six years before the commencement of the suit, excepting the last five, which are as follows: March 25, 1904, note $1,000; same date, check for $32.79; saíne date, currency $10; March 30, 1904, check, $16.15; same date, check, $38.63. So far as affects the question presented on this appeal, defendant by way of answer interposed the following defenses: (1) The 'statute of limitations against the entire account; (2) alleged that the $1,000 note of March 25, 1904, was given by defendant and accepted by plaintiff in full settlement and satisfaction of the entire account; (3) pleaded that the item of $97.50 was paid by the last four items on the credit side, that said last' four [543]*543items on the credit side were paid by defendant and accepted by plaintiff as payment and satisfaction of the said last item of $97-5° on the debit side. On the trial plaintiff offered testimony tending to show that the $i,ooo note was given only as a part payment to be applied on the balance then unpaid on said account, and the record shows that thereafter the 'said note -was paid in full by defendant. Defendant also offered testimony tending to show that the item of $97.50 was paid and satisfied by the last four items on the credit side of the account and was so- understood and intended, and that said debit charge of $97.50 and 'said last four credit items never were in reality any part' of the said account. The jury found a general verdict in favor of plaintiff for $1,026.82; this being the balance of the account as claimed by plaintiff less the item of $97.50. The court also submitted to the jury special interrogatories or findings to be answered by the jury in addition to the general verdict. One interrogatory was as follows: “Was the thousand dollar note of March 25, 1904, given by Mr. Hánskutt and received by McCarthy Bros. Co. in full settlement and payment of all items in this bill of particulars of date prior thereto?” Which interrogatory the jury answered, “No.” Another interrogatory was as follows: “Did the plaintiff advance for defendant this last item of $97.50, in the hill of particulars of April 26, 1904?” Which interrogatory the jury answered, “No.” These are the only interrogatories material to the questions on this appeal. Thereafter the defendant moved the court for judgment against plaintiff, dismissing plaintiff’s action notwithstanding the general verdict; said motion being based upon the pleadngs, plaintiff’s bill of particulars, all the files and records in the cause, the evidence taken therein, and the special findings of the jury in answer to the interrogatories submitted. Upon the hearing of said motion the court rendered judgment and made order reciting: “And the court having considered the pleadings, bill of particulars, evidence, and verdict's, and finding as a matter of law that all right of action of plaintiff, if any, was barred by limitations prior to the commencement of this action, said motion of defendant is hereby sustained. It is therefore ordered and adjudged that plaintiff’s action be, and the same hereby is, dismissed upon its [544]*544merits.” To this ruling and action of the court the appellant excepted and now assigns the same as error. We are of the opinion that appellant is right in its contention, and that the court erred in dismissing plaintiff’s cause of action, and that the court should have rendered' judgment in favor of plaintiff in accordance with the general verdict. There is no inconsistency between the. general .verd.ict and the special findings above referred to. By deducting the amount of $97.50 from the balance of $1,124.32 claimed by plaintiff, the jury in effect found that plaintiff had not advanced said item, the same as found by the special verdict. By the general verdict the jury also found in effect that the $1,000 note was given as a partial or part payment of the account, and to1 the same effect as found .by the special verdict.
[x] The only theory upon which the finding of the court can ■stand is that the giving of the said note did not toll or suspend the operation of the statute of limitations. If the note was not in the case at all, then the ruling and judgment of the court were correct. But the finding of the jury was that this note was given and accepted as a partial payment on said account, and the record shows that before the beginning of this action the said note was by defendant paid in full. We are of the opinion that the giving of this note and the payment of the 'same had the effect of tolling and staying the statute of limitations as to the whole account. It is not necessary that a payment, in order to toll the statute, should be made in money. Anything of value may be given by the debtor and accepted in payment by the creditor and will be sufficient, provided, however, it is accepted as part payment only and not full payment. The note of the debtor is sufficient. 25 Cyc. 1379; Pacht v. McNee, 40 Kan. 1, 18 Pac. 925.; Adams v. Tucker, 6 Colo. App. 393, 40 Pac. 783; Block v. Dorman, 51 Mo. 31.
[2] “A part payment, to be effectual to interrupt the statute, must be voluntary and free from any uncertainty as to "the identification of the debt on which it was made. It must also -be made as a part of a larger debt, and be so accepted by the creditor, and made under such circumstances as are consistent with an intent to pay the balance, which intent must be determined by the jury. [545]*545The burden of proof is on the creditor to show such intent, and the language used at the time of the payment is admissible to show the intent with which it is made.” 25 Cyc. 1371; Gaffney v. Mentele, 23 S. D. 38, 119 N. W. 1030.
[3] In Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320, under a statute in effect the same as section 79, Code Civ. Pr., providing that no acknowledgment or promise shall be evidence of a new contract to‘ take a promise out of the statute of limitations unless in writing, but nothing in it shall alter or take away the effect of a part payment, the court held that such statute does not exclude a-11 parol evidence bearing upon the new promise by way of part payment, that the intent with which the part payment is made may be determined from surrounding circumstances and by statements of the parties made at the time.
[4] J. H. McCarthy, president of plaintiff, testified, in 'substance: We had been pressing defendant for some time to pay ■his account. He wrote us he was coming up and would fix un>. We expected to have him settle in full by giving a note for part and cash for the balance. When he arrived, he only wanted to give a note in settlement. We insisted on him paying cash. He said he -was unable to do so at that time, as collections were slow. Finally he said: “I will give you a note for $1,000. The balance I will pay during the summer when collections are better.” Which' we accepted.
Under the verdict of the jury, for the purposes of this appeal, this testimony must be taken as true, and which was amply sufficient to remove the bar of the statute as to the entire account by the giving and payment of said note.
It is contended by respondent that the pleadings were not sufficient to raise or present the question of the tolling of the statute of limitations, in this, that it was necessary for plaintiff to plead the facts upon which the statute might be tolled. We are of the opinion this contention is not tenable.
[5] The statute of limitations as a defense is only available by affirmative answer. A plaintiff would not be required to anticipa1 r that defendant would plead the statute to the cause of action alleged in the complaint.
[546]*546[6] When a defendant by his answer -pleads the statute as a defense, it is not such an answer as would require plaintiff to -reply ■thereto, unless by order of the court on application of defendant. Section 130, Co-de Civ. Pr. Where defendant takes no steps to compel a reply to matter in avoidance not constituting a counterclaim, evidence to defeat the operation of the statute of limitations is admissible without formal reply; the law deeming for the purposes of the trial that such answer has been properly replied -to. This was the situation in this case, and -the evidence of the giving of the note -as part payment on the account sued upon was properly before the court for the purpose of -suspending the operation of the statute of limitations.
We do not desire to be understood as holding by this decision that the sufficiency of the evidence to sustain a verdic-t, either general or special, may be reviewed on a motion for judgment non obstante veredicto. This question has not been raised by the record in this case.
The order and judgment appealed from are reversed and set aside, and the lower court -directed to enter judgment in favor of plaintiff in accordance with the general verdict.
HANEY, J., Dissenting.