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eBook details

• Title: Foster v. Royal Indemnity Co.
• Author : Supreme Court of Montana
• Release Date : January 15, 1928
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 60 KB

Description

Promissory Notes — Statute of Limitations — Alleged Part Payment by Defendant — Insufficiency of Evidence to Show Such Page 47 Payment — Presumption of Payment Held Overcome by Evidence to Contrary. Promissory Notes — Statute of Limitations — Tolling of Statute by Part Payment — Evidence — Insufficiency. 1. Where, in an action commenced in 1941 on a joint promissory note made in 1929, the defendants pleaded the statute of limitations (sec. 9029, Rev. Codes) and plaintiff relied on a small payment allegedly made by defendants and endorsed on the note in 1934 as having tolled the running of the statute, the defendants testified that they did not make such payment or authorize anyone to make it for them and that it was not made with their knowledge or consent, evidence reviewed and held insufficient to show that defendants made the payment, and that therefore the court did not err in holding as a matter of law that the note was barred and directing a verdict in defendants favor. Same — Presumption that Part Payment made does not obtain — When Prima facie case of Payment Made. 2. The mere endorsement of a partial payment on a joint promissory note made by an employee of the holder at the latters direction, relied upon to show the tolling of the statute of limitations, does not raise a presumption that such payment was made by the makers or either of them; and before plaintiff can be said to have made out a prima facie case in that behalf he must show actual payment made by or for the makers with their knowledge and consent. Same — Effect of Part Payment made by one of two Joint makers. 3. Part payment on a promissory note by one of two joint makers does not suspend the running of the statute of limitations as against the other.

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