Opinion
Submitted on briefs January 11, 1927
Affirmed March 29, 1927
From Coos: J.C. KENDALL, Judge.
For appellant there was a brief over the name of Mr. A.E. Seaman.
For respondent there was a brief over the name of Mr. Ben S. Fisher.
There is no merit in the contention of defect of parties. This statutory ground for demurrer means too few parties: Tieman v. Sachs, 52 Or. 560 ( 98 P. 163). We take it appellant is complaining that too many have been joined in this action.
Relative to the second ground for demurrer, defendant asserts that it is improper to join, as parties defendant, a maker and an indorser of a promissory note, as their contractual obligations are separate and distinct. In view of the waiver of notice of protest and nonpayment, there is an absolute obligation on the part of the defendant, W.A. Collver, as indorser, to pay the note if the maker does not do so: Holmes v. Winters, 108 Kan. 227 ( 194 P. 639); Atkins v. Dixie Fair Co. et al., 135 La. 622 ( 65 So. 762); Bryden v. Cairncross, 145 Wis. 478 ( 130 N.W. 527); 3 R.C.L. 1148; 8 C.J. 715. Section 7903, Or. L., provides that a waiver of protest is deemed to be a waiver, not only of a formal protest, but also of presentment and notice of dishonor.
The liability of a maker of a promissory note is absolute, while that of an indorser is contingent: Everding Farrell v. Toft, 82 Or. 1 ( 150 P. 757, 160 P. 1160). The liability of a maker and that of an indorser is a several one. For these reasons, there are many authorities which hold, in the absence of a statute conferring such right, it is improper to join a maker and an indorser in an action on a promissory note: 8 C.J. 853. In this state the right of joinder is conferred by Section 37, Or. L., which provides:
"Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes may, all or any of them, be included in the same action, at the option of the plaintiff."
Washington and Oklahoma have statutes which are identical with the above section and, in those jurisdictions, it is held proper to join a maker and an indorser in an action on a promissory note: Petri v. Cornelius et al., 99 Wn. 601 ( 170 P. 127, 1 A.L.R. 1595); Locke et al. v. First National Bank of Ardmore (Okla.), 248 P. 869.
Does the complaint upon its face show that the action is barred by the statute of limitations? The demurrer admits the truth of all the material allegations of the complaint and of every reasonable inference deducible therefrom: Marshall v. Marshall, 98 Or. 500 ( 194 P. 425); Wills v. Nehalem Coal Co., 52 Or. 70 ( 96 P. 528); 21 R.C.L. 506. It is argued that a payment, as alleged, if made by one of the makers of the note would not toll the statute as to an indorser. This proposition is well supported by the authorities of many jurisdictions: Barber v. W.M. Absher Co., 175 N.C. 602 ( 96 S.E. 43); Highland Inv. Co. v. Kansas City Computing Scales Co., 277 Mo. 365 ( 209 S.W. 895); Maddox v. Duncan, 143 Mo. 613 ( 45 S.W. 688); Smith v. Dowden, 92 N.J. Laws, 317 (105 A. 720); Morgan v. Huffmann, 76 Mont. 396 ( 247 P. 326); Mitchell v. Graham, 27 Ga. App. 60 ( 107 S.E. 373). However, as said in Ford v. Schall, 110 Or. 21 ( 221 P. 1052):
"Because of a statute peculiar to our own state, the decisions of other jurisdictions are not of great assistance in the determination of this cause."
Section 25, Or. L., provides:
"Whenever any payment of principal or interest has been or shall be made upon an existing contract, whether it be bill of exchange, promissory note, bond, or other evidence of indebtedness, if such payment be made after the same shall have become due, the limitation shall commence from the time the last payment was made."
In the case last cited the above section was construed and it was held that a payment by a joint maker of a note, although without the knowledge or consent of his comakers, will not toll the statute as to any of the joint obligors. While the precise question here involved was not before the court, the construction therein given to the above statute leads to the conclusion that the same rule would obtain as to an indorser. The statute is impersonal and makes no distinction between a maker and an indorser. As stated in Dundee Investment Co. v. Horner, 30 Or. 558 ( 48 P. 175):
"Its effect (Section 25) is to make the fact of such part payment operate as a continuation of the original promise, while, under the rule prevailing elsewhere, the payment is only evidence of a new promise, which, being supported by the original consideration, becomes substantially the basis of a new cause of action: 1 Wood on Limitations, 287. In other words, under the statute, the payment prevents any interruption of the original obligation. It simply fixes the time when the statute commences to run, and does not operate by means of a new promise to take a case out of a statute which is already running at the time the payment is made. At least this is the effect of the construction put upon the statute by the adjudications of this court, and it has therefore been held that payment by any person liable, directly or in a representative capacity, will keep the debt alive as to all persons liable thereon, whether such payment was made by their authority or not."
We cannot agree with the contention of the appellant that it does not appear from the complaint that any of the defendants made the payments on this note. After reciting the amount and time of payments it is alleged "* * the defendants have wholly failed, refused and neglected to pay the said note or any portion thereof except as hereinbefore alleged." So far as tolling the statute is concerned, it is immaterial as to which one of the defendants made the payment. We think it appears on the face of the complaint that this action was commenced before the expiration of six years after the date of the last payment.
The judgment entered in accordance with the prayer of the complaint is affirmed. AFFIRMED.